I was thinking of posting this in my "Electoral College" thread and bumping that thread up to the top, but since this thread is currently active I'll just put it here.
A persuasive *
CONSTITUTIONAL* case can be and is being made against one important aspect of the current electoral system: the "winner take all" rule, which is *
NOT* part of the Constitution.
Here is the link to a very long, very thorough essay by Larry Lessig (of Harvard Law School); within his article he also quotes in full a quite convincing and thorough legal argument written by Jerry L. Sims (a lawyer from Atlanta):
https://medium.com/@lessig/the-equal-pr ... .pwlexs8d3
Because it's so long I'm not going to post the whole thing, but here are some of the most important points. I urge you all to read the whole thing, and I'm particularly interested in what our resident legal eagles have to say about it. (If some of you don't bother to read it but respond anyway with points already made and addressed within the article itself, I'll either try to find and post additional quotes, or I'll tell you to read the damn article--depending on my mood at the time.)
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?
[ ... ]
There is so much at stake here. So how can we go so quietly here?
So what would the argument be?
I’ve been sketching the argument privately as I’ve worked through the material. This article by Christopher Duquette and David Schultz raised the question years ago, and Chris has recently updated the stats on the piece. He and I have agreed to do a longer paper about the Equal Protection argument after this election is over, because I’ve become convinced that this is a serious and probably correct argument that needs to be pressed in the courts.
But yesterday, I received the fullest statement of the argument so far, by a lawyer from Atlanta, Jerry L. Sims. With his permission, and in the spirit of open source legal practice, I’m posting the argument here. If you’re convinced it’s plausible — and no doubt, its 1000x more plausible than anything the Republican lawyers invented in 2000—can you spread the word? Top down thinking on this isn’t happening. It will only go somewhere if we fuel it bottom up.
[ ... ]
From Jerry Sims:
I believe that a reasonable argument can be made that the allocation of State presidential Electors on a winner-take-all basis is an unconstitutional denial of the equal protection of the law and the principal of one man one vote. The argument may be summarized as follows:
- 1. Article 2, Section 1, of the Constitution mandates the selection of the president by the Electoral College with each state having the same number of Electors as it has Senators and Representatives. This creates an inherent bias in favor of small states by giving every state two additional Electors without regard to population. (For the sake of simplicity, I will refer to this hereinafter as the small state bias or the bonus Electors.) But the small state bias is fairly minor and it WAS NOT the cause of Donald Trump’s apparent victory in the Electoral College in this year’s Presidential election. Trump won because of the winner-take-all method of allocating Electors used by 49 of the 51 jurisdictions participating in the Electoral College.
[ ... ]- 4. The constitution does not mandate the method the states use to select Electors. That matter is left to the discretion of the States. Originally the State legislators selected the Electors. But during the 19th Century all of the states moved to statewide elections. Currently all of the States select Electors by statewide elections and all but two of the States, Nebraska and Maine, select Electors on a winner-take-all basis. Nebraska and Maine allocate Electors by congressional district with two Electors elected on a statewide winner-take-all basis.
5. Since the Electoral system was adopted vast changes have occurred in state populations, so that as of 2010 our least populace state, Wyoming had a population 563,626, and 3 presidential Electors, and our most populous State, California had a population of 37,253,956 and 55 presidential Electors. In other words, California had a population more than 66 times greater than Wyoming while having only 18 times as many presidential Electors. As of 2010 our most populace 9 States in aggregate have a larger population than the other 40 states and the District of Columbia combined. The large concentration of population in a handful of states combined with the winner-take-all method of selecting Electors has skewed the original constitutional design so that the likelihood that a candidate who loses the popular vote will win the Electoral College has become greater than ever before.
6. A candidate who lost the popular vote has been elected President 5 times in US history. It occurred 3 times in the 19th Century when the elections were thrown into the House of Representatives because the Electoral votes were spread between multiple candidates with no candidate getting a majority. As we all know it has also occurred twice in the last 16 years. The 2000 election was the first time in US history that the candidate losing the popular vote won a majority of the Electoral College outright. Now that has happened again in 2016. The major contributing factors to this outcome are the winner-take-all system of allocating Electors coupled with the growing concentration of the US population in a handful of States. These factors create a substantial risk that a candidate that loses the popular vote would win the Electoral College outright even if the small state advantage did not exist. This election is a clear example of that risk. To be clear, Trump did not win the Electoral College because of a constitutional design, he won because of the winner-take-all system of allocating Electors and that critical legal factor is strictly a function of State law.
[ ... ]- 11. In summary, a winner-take-all system of allocating Electors by the states denies the minority of voters within each state any representation whatsoever within the Electoral College and ultimately in the case of the 2000 and 2016 elections, denies the plurality of voters nationwide their choice for President under circumstances in which the constitutionally established small state advantage made part of the Electoral College wouldnot. This is neither a reasonable nor a rational result in a representative democracy. This result was dictated by the winner-take-all method of allocating Electors used by the states. It is this state law method of allocating Electors that is an unconstitutional violation of the equal protection clause of the 14th Amendment and its bedrock principle of one man one vote.
12. The winner-take-all allocation of multiple Electors (ranging from 3 Electors in our smallest states to 55 in our largest) denies any voice whatsoever to each states minority voters, no matter how substantial their vote may be. The distortion of presidential election results by the winner-take-all apportionment of a state’s Electors is an unconstitutional denial of the equal protection of the law. If the selection of Electors is viewed by a state as a statewide election and 51% of the voters in that State vote for Candidate A and 49% for Candidate B and all 29 Electors from that State are Electors for Candidate A, then the voice of all of the voters for Candidate B will be ignored. On the other hand, if that State’s Electors are allocated proportionately between candidate A and Candidate B, every significant group of voters in the State is represented by Electors in the selection of the President. The winner-take-all allocation of a State’s Electors results in an Electoral delegation that is not representative of the State’s voters and denies any voice whatsoever to minority voters within that State.
13. In Georgia, for example, we have 16 Electors and approximately 44% of all voters cast ballots for Clinton. Yet the Clinton Voters receive no representation within the State’s Electors. They are left with no voice whatsoever in the election of the President by the Electoral College, their votes are for all practical purposes thrown away. If Georgia were electing a single candidate then a winner-take-all result would be proper, but in an election of 16 Electors, the Clinton votes are not being given equal dignity with the Trump votes. Of course the state could argue that there is a single slate of Electors is up for election. But therein lies the rub, the State is not free to disregard the one man one vote rule by arbitrarily framing the election of 16 Electors as though it is an election of a single office holder. That argument would be a pretext designed to deny any voice to the voters for the candidate not winning the plurality of the vote within the State, even though in reality multiple representatives are being selected to vote in a second election for a single candidate. This system leaves minority voters in Georgia with no voice whatsoever in the final real election. Thus, if the election is viewed by the State as a statewide election, then Electors should be allocated proportionately, in order to give every vote equal dignity and weight, thereby electing a delegation of Electors that actually represents all of the voters within the State. Under this methodology every vote counts. Proportional allocation of Electors respects the one man one vote principle while preserving the small state bias. It merely eliminates the likelihood of a President being elected who did not win the popular vote and did not win because of the small State bias embedded in the Constitution.
I've left a lot out, so please go to the link and read the whole thing. I think it's a very interesting and (for me, anyway) quite convincing argument.
