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 College’s winner-take-all system of awarding votes in 48 states.
“Beginning today, in four states across the country, lawsuits will be filed to challenge the way presidential electors are selected in America,” he wrote on Medium.com. “The plaintiffs in these suits charge that the ‘winner-take-all’ system—the system by which the candidate who wins the popular vote in a state gets all of the electoral college votes in that state—violates both the 14th Amendment’s principle of ‘one person, one vote,’ and the Free Speech Clause of the First Amendment.”
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.)
“Two of the lawsuits filed today are in traditionally ‘blue’ states —Massachusetts and California. Two are in ‘red’ states—Texas and South Carolina,” Lessig explained. “The 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 Texas’ most prominent constitutional scholars, Sanford Levinson.”
Lessig’s court filings were not well received in the insular world of election law bloggers and academics.
“Of course, part of litigation like this is theatrical,” concluded Derek T. Muller, a law professor at Pepperdine University School of Law, on his blog, Excess of Democracy. “Another 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.”
“The 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,” tweeted Rick Hasen, a University of California Irvine law professor who curates the nation’s most widely read election law blog.
Hasen’s 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 side’s 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, Bush v. Gore. “On that standard, the Florida recount failed the one person, one vote principle,” Lessig explained.
Many legal experts, election officials, and of course, Democrats, were mortified by Bush v. Gore, 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 weren’t 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 weren’t treated the same. So Hasen is raising his legal eyebrows at Lessig’s 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, he noted, because it’s “written into the Constitution.” What’s not written into the Constitution, however, are “the systems that the states use to allocate electors within the Electoral College.”
“Those systems are instead created by state law,” Lessig noted, arguing, “And as the Supreme Court has held over and over again, those presidential selection systems are subject to the principle of ‘one person, one vote.’”
On the surface, Lessig is absolutely correct. Just as his criticism of how the Electoral College distorts presidential campaigns is also indisputable.
“In 2016, 99% of [presidential] campaign spending was in 14 states,” Lessig wrote. “Those 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 don’t deserve to be represented any more 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.”
From a public education standpoint, or popularizing the worst features of American democracy that should be fixed, Lessig is on moral high ground. What’s 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, Lessig’s reliance on Bush v. Gore and Hasen’s snarky tweet.)
The lawsuit filed in U.S. District Court in Massachusetts is seeking a ruling that declares that state’s winner-take-all system unconstitutional and orders its legislature to adopt “a valid method of selecting Electors.” Lessig’s team is making slightly different arguments in Texas and South Carolina, where they invoke the Voting Rights Act of 1965, which protects the “voting pattern for minorities and historically excluded groups of citizens.” 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 Lessig’s Medium.com essay: enough states joining an interstate compact to agree to award all of their Electoral College votes to their popular vote winner.
“We 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, the National Popular Vote Interstate Compact [NPV],” Lessig wrote. “When 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.”
But right now, the push for more states to join the National Popular Vote compact (thus far, all are blue) has bogged down, Lessig said, which means more pressure has to be applied; hence the litigation.
“We can’t sit around waiting until state legislators finally step up to defend the principle of citizen equality,” he 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.”
“That, ultimately, is why I entered this struggle,” he continued. “After the 2016 election [where he ran for president], I helped found 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 ‘representative democracy’ to become fundamentally unrepresentative.”
As a moral leader and person of conscience, Lessig’s efforts are laudable. However, a clear moral compass doesn’t steer one through the federal courts to win Supreme Court victories, which is where any Electoral College reform would ultimately be weighed. And that’s where his lawsuits have prompted some scorn, at least initially.
“There are different ways states might award electors (which I used to project alternative electoral outcomes in 2016),” wrote Pepperdine University’s Muller. “Brenden Cline in 2017 nicely summarized the series of major problems with this litigation. It’s 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 War—with brief exceptions in Colorado in 1876 (legislative selection), Michigan in 1892 (district method), and Nebraska and Maine (district method) in recent years.”
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.
“I discuss this [state] plenary authority in 2007 and 2008 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 electors—at least not without congressional consent. I also discuss it as an element of federalism in Invisible Federalism and the Electoral College.”
But mostly, Muller said legal challenges seeking to overturn the Electoral College routinely come and go, always leaving the courtrooms defeated. “Since [2016’s] Election Day, a number of litigants–admittedly, mostly (if not all!) pro se—have attempted to file just such challenges. They’ve lost every time (0-6 by my count).”
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.
“It 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,” he wrote. “Much 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.”
Steven Rosenfeld covers national political issues for AlterNet, including America’s democracy and voting rights. He is the author of several books on elections, including Democracy Betrayed: How Superdelegates, Redistricting, Party Insiders, and the Electoral College Rigged the 2016 Election, to be published in March 2018 from Hot Books.