As Bad As It Is, the Electoral College Could Get Even Worse
By 
“I applaud the brave bipartisan idea that the winner-take-all allocation of electoral votes is unconstitutional”
Larry Lessig proposes ONE MAGIC TRICK that could reform the Electoral College and possibly keep Trump out of the White House. The beginning is a trademark misreading of the political landscape:
In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim.
Let’s stop here. The idea that the equal protection argument cooked up by Republican lawyers to stop the recounts was “brilliant” is absurd. Leaving aside the lack of precedent supporting the argument, the obvious problem with the theory that the 14th Amendment requires recounts with uniform statewide standards is that the counts that would result in Bush winning were as or more constitutionally defective. The argument could succeed, in other words, only if the a majority of the Supreme Court were such completely in the tank partisan hacks that they would selectively apply an innovative equal protection argument to the narrow issue at hand while providing a remedy that was flagrantly inconsistent with the holding. Fortunately for Bush and his lawyers, they were!
But, of course, given the “partisan hacks willing to be utterly lawless” condition the quality of your argument is irrelevant. Rehnquist’s Article II argument was, if anything, even worse, but if O’Connor and Kennedy had to choose between signing on to it or risk Gore winning a recount, they would have gone along with it. Another implication, which is often forgotten by people who have for sixteen years insisted there must have been some magic legal and/or political strategy that could have allowed Gore to prevail, is that Gore was drawing dead. Given Republican control of the Florida legislature and executive branch, the Supreme Court, and the House of Representatives — that is, all of the relevant decision-making bodies — as soon as Bush finished the initial count ahead he was going to become president and the only question was how. We’ll be coming back to this point.
When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim
I’ve been struck in this election cycle by just how timid Democrats have been about thinking in the same way. I’m not (yet) saying they necessarily should. But it is striking to see how committed they are to allowing this train wreck to occur. And more surprisingly, how little careful attention has been given (at the top at least) to just how vulnerable—given Bush v. Gore—the current (system for counting votes in the) electoral college is.
With unusual candor, the per curiam opinion in Bush v. Gore told you it would have no precedential value: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” It doesn’t make anything “vulnerable,” let alone the Electoral College.
Anyway, this whole argument that the Democrats could stop Trump from becoming president but are just being “timid” is at least as silly as the idea that Al Gore could have made Jeb Bush, Antonin Scalia, and/or Tom DeLay put him the White House if he had just made a clever enough argument. No federal judge is going to take this challenge to the Electoral College seriously, and even if you could somehow stop the Electoral College from picking Trump there is zero chance a Republican House will certify anybody but Donald Trump as the winner of the election anyway.
So as a practical strategy, Lessig’s theory isn’t even worth discussing, but perhaps we can think about it as a longer-range approach. So what’s the theory?
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?
Ummmm…maybe because every state using Maine and Nebraska’s allocation of electoral votes would be an anti-democratic catastrophe that would also give the Republican Party an essentially unbreakable lock on the White House for the foreseeable future? Why on Earth would Democrats want winner-take-all allocation unconstitutional?
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. Delaware tried to do this exactly fifty years ago, but the Court ducked the question. But based on that complaint, were I a citizen of California, I’d ask my current AG (and future Senator) why hasn’t CA done the same thing? And were I a citizen of New York, I’d ask my AG the same. Why are these big states standing by quietly as their voters are essentially silenced by the unconstitutional inequality?
It is certainly mysterious that the Attorneys General of New York and California have not demanded that the Supreme Court here a frivolous argument that would result in essentially ensuring that the Republican Party would permanently occupy the White House irrespective of the popular vote.
Meanwhile, as I’ve tried to get people to consider the question, I can almost feel the dynamic of their resistance. “This is beneath us,” they seem to sneer. “It’s the sort of thing only ‘they’ do.” To which the only fair response is — right, but that’s what they do, and because they did it in Bush v. Gore, that case gives Democrats the hook they need to do it now. And when people say “there would be a revolution if the Court decided this election,” why isn’t the response, “why wasn’t there a revolution when the Court effectively mandated the loser of the popular vote (Bush) had to be President?”
I like this. “If people disagree with my argument, it can’t be because they think it’s silly and unworkable. It’s because they’re scared.”
Lessig then presents an argument from Jerry Sims that defends the proposition 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 principle of one man one vote.” It expends many words before addressing this rather critical objection. And here, the writing is very muddy and confusing:
15. I think it is important that the argument be made that either proportional selection of Electors be allowed on the State level or winner-take-all selection of Electors be allowed based on the national vote. The winner-take-all method on the national vote level could serve as a backstop to use in the event a political party moves to gerrymandered district voting for Electors. That methodology would also provide some insurance against the increased risk of elections being thrown into the House of Representatives due to some Electors being allocated to third-party candidates. This is a greater risk of having elections thrown into the house of Representatives using proportional selection of Electors even if a minimum cutoff of 10% of the vote if required for a candidate to be eligible for allocation of Electors. Finally both options would encourage voters to turn out because under both methods all votes are count and are equally important. Under current methodology democratic votes in heavily Red States play no role in the outcome of the election and the same is true of Republican votes in heavily Blue States.
Allowing “winner-take-all” allocation if it’s based on the national popular vote strikes me as completely incoherent — aren’t voters of the party in the states that didn’t win the popular vote still being “disenfranchised?” Even stranger is the “backstop” language. Even if? Many state legislatures are already gerrymandered, and even just ordinary redistricting would have Republicans a major advantage. Democratic legislatures in big states might be able to counteract this by using selective winner-take-all, but this would be a complete mess that’s even worse than the current system.
And, of course, this argument ignores the fact that the Supreme Court is about to have a Republican majority. Were the Court to accept an argument that winner-take-all allocation was unconstitutional, they would almost certainly just rule say that and leave it there, which would have utterly catastrophic results. As bad as the Electoral College is, the possibility that a state like Michigan might move to allocating electoral votes by congressional district could make it far worse than it is. The idea that liberals should be legitimizing this argument by suggesting that winner-take-all allocation was forbidden by the Constitution — even if the precise form of the argument might mitigate the damage — is frankly crazy.