Posted October 03, 2017 at 08:02 AM | Updated October 04, 2017 at 05:49 AM
Campaign 2016 Milestones
BY DOUGLAS PERRY
Lawrence Lessig wanted to be president.
In 2015, the Harvard Law School professor launched a quixotic, single-issue campaign for the Democratic Party nomination, seeking to crowd-fund his way to the White House so he could fix America’s “crazy corrupt” political system.
The money did not come pouring in, and Lessig soon gave up the effort. But he hasn’t abandoned his dream of “revolutionary reform.”
Now Lessig is the litigation strategist for Equal Votes, which seeks to use an ambitious lawsuit to tweak the electoral college, the constitutional mechanism by which the U.S. elects its presidents. And this campaign just might work.
2016 Election Clinton
Photos: The Associated Press
Hillary Clinton, the 2016 Democratic nominee who lost the general election to Republican Donald Trump, has called for the abolition of the electoral college. "I think it needs to be eliminated," she said in September. "I'd like to see us move beyond it, yes."
With the electoral college, designated electors representing their respective states’ voters officially choose the president a few weeks after the popular vote takes place. All but two states award their electoral-college votes via a “winner takes all” system.
Clinton secured almost 3 million more votes than Trump last November, but she lost by razor-thin margins in a series of key Midwest industrial states, giving Trump a victory in the electoral college and thus the presidency.
Unlike Clinton, Equal Votes does not want to bring about the end of the electoral college. Instead, it seeks to make the distribution of its votes proportional by state population. The group claims this would make the electoral college more representative and less divisive.
GOP 2016 Trump
Equal Votes argues that the “winner takes all” requirement in 48 states effectively disenfranchises millions of Americans, violating the U.S. Constitution’s “one person, one vote” principle. It also means that voters in the handful of states that are more or less evenly divided between Democrats and Republicans -- the famous “battleground states” -- get a greater say in presidential elections. Candidates spend much more time there; the concerns of battleground-state voters receive more attention.
Lessig and the other reformers behind Equal Votes say presidential candidates’ focus on battleground states unfairly tilts the national political agenda. Those states “are substantially different from the United States as a whole,” the group writes on its website. “They are older, and they are whiter. Winner-take-all effectively outsources the selection of our president to a subset of America -- a subset that does not truly or accurately represent America.”
Donald Trump
The electoral college did not come about by accident. The country’s founders wanted to avoid direct election of the president. They created the electoral college to help prevent demagogues with “[t]alents for low intrigue and the little arts of popularity” from achieving power.
That said, the electoral college’s effects today are a historical accident. State electors’ independence over the years has been severely restricted, and they are now expected to be a mere rubber stamp for the majority.
Donald Trump
It’s well known that the electoral college gives more power to smaller-population states. Lessig points out that 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, California has a population that is 66x Wyoming, but only gets 18x the electoral-college votes.”
Equal Votes, however, argues that the true problem is not that small-state residents get more bang for their votes. It’s that large numbers of voters in many states get no bang at all. In an essay Lessig published on Medium last December, he quoted from an email Atlanta lawyer Jerry Sims wrote to him:
“[T]he 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.” Sims goes on to make clear that this winner-takes-all approach is not codified in the U.S. Constitution; it is a function of individual state laws that, he argues, is “an unconstitutional denial of the equal protection of the law and the principle of one man one vote.”