Harvard University law professor Lawrence Lessig penned a blog post this week offering up challenges to the current Electoral College paradigm, mainly the “winner takes all” system embraced by the vast majority of states.
Lessig said the Constitution “creates an inequality” due to the way in which electoral college votes are allocated — and then broke down what he perceives as the real problem: The “winner take all” rule that’s currently at play in all but two states.
“But the real inequality of the electoral college is created by the ‘winner take all’ (WTA) rule for allocating electoral votes,” he wrote. “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.”
While the system is ingrained in the Constitution, he said the winner takes all system isn’t mandated by the Constitution and was, instead, created by states. Lessig then wondered why the system isn’t being challenged by Democrats.
The election was waged assuming WTA; it’s not fair now, the argument goes, to change the rule for how electors will be counted.
No doubt, it is unfair to the campaigns of Hillary Clinton and Donald Trump. They spent money in reliance on the existing system. But that’s not the only “unfairness” at stake here: What about the unfairness being felt by the millions of voters whose votes were effectively diluted, or essentially disenfranchised? Why doesn’t their harm also weigh in the balance?
It’s perfectly clear that the Attorney General of New York or California could walk into the Supreme Court tomorrow, and ask the Court to hear the case.
Lessig explained why he believes an important question should be asked: “Why are these big states standing by quietly as their voters are essentially silenced by the unconstitutional inequality?” He broke that quest down in an in-depth blog post, quoting extensively from fellow attorney Jerry Sims’ arguments.
The essential argument is that the current system essentially denies “the minority of voters” in each state. In the case of both the 2016 — and the infamous 2000 election — this meant that the majority of voters didn’t see their will come to fruition. Read Lessig’s full arguments here.
The attorney also launched a new effort titled, “The Electors Trust,” which will offer free legal support to any Electoral College elector who wants to reject supporting Trump in violation of state law, as Politico reported.
“Our primary objective is to provide a safe and confidential legal context in which electors can seek advice and support, and depending on the facts, an opportunity to litigate to defend their freedom,” Lessig explained in a description.
Listen to attorney Tara Ross discuss the electoral college at the 2:30-mark below:
In addition to offering legal help, the goal of the trust will be to help electors come up with ideas about how they can stop Trump’s ascension to the White House — a collective effort aimed at securing the best possible option to stop the president-elect in his tracks. Read more about the initiative here.
As Faithwire previously reported, Ross has spoken openly about why she believes the Electoral College is actually a viable means for selecting a president.
“The sound bites against the Electoral College are easy, and they sound irrefutable. But more education reveals that the system is indispensable to our republic,” Ross said. “The Electoral College’s unique blend of democracy and federalism (state-by-state voting) encourages presidential candidates to build national coalitions of voters.”
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