A: Absolutely, great point. It should have been fixed a long time ago. But the winner of the popular vote usually wins the EC vote, too, so everybody just left it alone. Any practical need for the Electoral College expired in 1920 with the ratification of the 19th Amendment. Before then there were disparities in the voter populations, between Northern and Western States which had Suffrage, and mostly Southern States that denied the vote to women. This isn’t about fixing the whole Electoral College system though, although I certainly think the court has grounds to do so – this is about getting rid of the clearly unconstitutional state practice of awarding Electors in a Winner-Take-All manner.
The WTA system should have been disallowed years ago. But past inaction is no excuse for not acting now!
A1: First, Trump does not win the EC because of the disproportionate power given to unpopulated States. He wins it because of the winner-take-all laws enacted by the States. Take away the winner-take-all-laws and Clinton wins with 270 Electoral College votes.
A2: The EC is not a representational body like the US Senate, which we know is meant to represent all states equally, it was a political solution to correct for differences in population between slave states and free states. Madison favored a national popular vote for President, but said it wasn’t politically possible. Southern States wanted extra representational credit for their slaves. Northern States could have insisted they give slaves the right to vote if they wanted all that voting power, but of course they didn’t.
However, the Constitution was subsequently amended; black men and then women were enfranchised via amendment, and such amendments override wording in the original constitution.
The 14th Amendment gave us Equal Protection, the bedrock right that ensured minorities got the right to vote, interracial couples the right to marry, and gay people the right to marry. Ironically it also gave George W Bush the WH when the court ruled the FL recount must be done with equal recounting methods to ensure Equal Protection. The 15th and 19th Amendments ensured one-person, one-vote, regardless of race and gender.
A3: If your district voted for a Republican representative to congress, but more people voted Democratic in your State, would it be fair to have all congressional representatives from your State be Democrats? Of course not. This disenfranchises your district’s choice and renders you unrepresented. Of course this is an absurd idea. But this is exactly the absurd perversity that the winner-take-all laws have had on the Electoral College.
A: This appeals to our basic sense of fairness. Absolutely, the candidates would have waged their campaigns differently if they weren’t worrying about the Winner-Take-All system, but the Constitution doesn’t care so much about the candidates as it does the voters, and the Constitution, the ultimate rule book, has found time and time again that “one person, one vote” must be upheld. What is more important, the fairness to 2 people who ran for president, or the constitutional rights of 136,737,898 Americans who voted, especially the 2,840,337 more voters who voted for Clinton over Trump?
This argument is tantamount to saying a person convicted under a law later found to be unconstitutional should nonetheless stay in jail, because “it wasn’t unconstitutional when he broke the law.”
A: Much of the case law needed to overturn the winner-take-all laws was actually written by conservatives. Conservatives and liberals alike revere the Constitution.
C.J. Rehnquist wrote in Bush v. Gore, “When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” (531 U.S. 98, 121 S. Ct. 525, 148 L.Ed.2d 388)
And there’s plenty more! C.J. Rehnquist cited: Reynolds v. Sims, “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” (377 U. S. 533, 555 (1964))
Lastly, in Williams v. Rhodes (1968), the Supreme Court wrote: “Obviously we must reject the notion that [Art. II, § 1 of the Constitution], gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions. We therefore hold that no State can pass a law regulating elections that violates the Fourteenth Amendment’s command that ‘No State shall… deny to any person… the equal protection of the laws.” (393 U.S. 23, 89 S. Ct. 5, 21 L.Ed.2d, pp, 28–29)
A1: This is a core civil rights case. There are multiple precedents for this on strong legal ground. The truth is that this case has been a winner since the 1970’s, at least, but no one’s bothered to bring it. Now, it is relevant, and so any State AG who brings it will be remembered as a civil rights hero, and a superhero, no matter the final SCOTUS tally.
A2: But if one needs the cynical political calculations: (1) the lawsuit instantly claims the national stage in a super fierce way for the State AG or Governor who brings it; (2) win or lose, it gives the official a strong leg up within her party in any future bid for higher office; (3) even if the case loses, the official’s political base will love him/her for having tried; and (4) if the leaked CIA reports about Russia hacking the election point to as serious a problem as they could, this suit is a vehicle to restore order in a lawful, dignified way.
A3: The States have the power to file with Original Jurisdiction in the Supreme Court when suing other States or the United States, bypassing the appellate process. States also have the weight and resources to argue and win this case to protect their citizens.
A: For those not in the know, gerrymandering is the act of drawing legislative district boundaries in a way that dilutes the representation of certain groups. NC has been ordered to hold a new election in 2017 because it gerrymandered the state legislature, thereby harming representation of racial minorities. Similarly, the winner-take-all state laws used to allocate Electoral College votes is a gerrymandering of all interests into a single statewide district. The result is African Americans in Alabama, who voted overwhelmingly for Clinton, were disenfranchised and gerrymandered out of receiving any representation in Alabama’s Electoral College meeting. Similarly, Trump supporters, in rural areas of California, receive no representation in California’s Electoral College meeting.
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