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Lessig writes: "At the core of a democracy lies a simple principle - that votes should count equally. Whether you're white or black, rich or poor, or from Rapid City or Cedar Rapids, your vote should count the same as the vote of anyone else. 'One person,' as this ideal gets expressed, 'one vote.'"

Protesters demonstrate against President-elect Donald Trump outside Independence Hall in Philadelphia. (photo: Mark Makela/Getty)
Protesters demonstrate against President-elect Donald Trump outside Independence Hall in Philadelphia. (photo: Mark Makela/Getty)

The Time Has Come: Reform the Electoral College Now

By Lawrence Lessig, The Daily Beast

14 September 17

The founders created the Electoral College, but the states made it winner-take-all. And that's the Achilles Heel where a new group has aimed its arrow.

t the core of a democracy lies a simple principle—that votes should count equally. Whether you’re white or black, rich or poor, or from Rapid City or Cedar Rapids, your vote should count the same as the vote of anyone else. “One person,” as this ideal gets expressed, “one vote.”

This principle, however, is violated by the way we elect our President. Because of the Electoral College, the votes of some are worth more than the votes of others. Sometimes much more. One vote in Wyoming, for example, is worth about 3.6 votes in California. One vote in Vermont is worth 3.5 votes in Texas.

That inequality — between states — is baked into our Constitution. The framers crafted an indirect method for electing the President. States are given “electors” equal to the total number of representatives they have in Congress. Because every state, regardless of population, gets the same number of senators, this inflates the power of small states relative to large states. That inequality was part of the framing deal.

Yet there is a different and a much greater inequality—within a state—that gets injected into the system for electing the President—not from the Constitution, but from state law. This is the consequence of the state-created rule for allocating electoral college votes called “winner take all.”

All but two states (Maine & Nebraska) assign all their electoral college votes to the winner of the popular vote in that state—regardless of the margin by which that winner has prevailed. In the last election, for example, Hillary Clinton beat Donald Trump by just 45,000 votes in Minnesota (out of 2.7 million votes cast). Yet she got all of Minnesota’s electoral college votes, while Trump got zero. Likewise, in Michigan, Trump beat Clinton by just 10,000 votes (out of 4.6 million cast), but he got every single electoral college vote, while she got zero.

This is the effect of “winner take all”: The votes of citizens of the United States for President of the United States get nullified in a “winner take all” state, merely because they do not align with the majority vote in a particular state.

Obviously, at a state level for a state office, “winner take all” is perfectly fine. There is only one Governor in a state. The candidate that gets the most votes in that state should be the Governor.

But when aggregating the votes of United States citizens for a federal office, this system makes no sense. A Republican from California is no less a United States citizen than a Democrat. Yet her vote for President counts for nothing. Likewise with a Democrat in Texas. There is no reason not to allocate electors in a way that gives equal weight to every citizen’s vote, at least within the constraints of the framers’ original compromise.

States initially adopted “winner take all” because it amplified the power of that state’s votes. This troubled even Jefferson, who recognized the incentive to try to expand a state’s influence. As he wrote, “[a]n election by districts would be best if it could be general, but while ten States choose either by legislatures or by [winner take all] it is folly and worse than folly for the other States not to do it.”

Yet  once (practically) every other state had embraced winner take all, its important effect was not to amplify, but to shift the focus of the presidential campaigns. This is because under “winner take all,” the only states in which it makes any sense for a presidential candidate to campaign are “battleground states” — states in which the popular vote can be expected to be so close that one side has a real chance to beat the other.

Thus in 2016, two-thirds of campaign events happened in just 6 battleground states — Florida, North Carolina, Ohio, Pennsylvania, Virginia, and Michigan. Four battleground states — Florida, North Carolina, Ohio and Pennsylvania — saw 71% of campaign ad spending and 57% of candidate appearances. All together, the 14 battleground states saw 99% of ad spending and 95% of candidate visits for campaign purposes.

Yet “battleground America” is not America. Florida and Pennsylvania, for example, have a large senior citizen population — proportionally much higher than the nation as a whole. So candidates fight to earn the vote of those seniors, by promising a platform bent strongly to benefit them. Likewise, battleground America is whiter than America generally. The issues that matter to people of color are thus largely invisible (or hidden) in battleground campaigns. “Winner take all” thus outsources the selection of the President to a fraction of America’s voters (35% in 2016), but a fraction that does not in any sense represent America.

There is no good reason for this inequality. It is time for the Supreme Court to end it. The Constitution, through the Electoral College, creates some inequality, no doubt. That is no justification for allowing the states to create even more—especially when the consequence of that inequality is to so systematically skew the focus of presidential campaigns.

Even worse, these rules increase the probability of a minority-vote president. According to some estimates, there is now a 1 in 5 chance that the electoral college will produce a minority-vote president — a President that loses the popular vote, yet wins the electoral college vote. That probability will increase over time, as the population of small states relative to large states shifts. To the extent such a risk were required by the Constitution, we should accept it, at least until the Constitution gets amended. But when that risk is created not by the Constitution, but by state rules for allocating federal electors, the states should bear a high burden to justify this undemocratic result.

With others, I have now launched a new project, EqualVotesUS, intended to challenge these state created rules. The Supreme Court has made it clear that the principle of “one person, one vote” applies in the “Presidential selection process”—first in a set of cases in the 1960s, and most recently, in 2000, in a case called Bush v. Gore. But the Court has not yet considered whether “winner take all” rules are themselves consistent with “one person, one vote.” Delaware asked the Supreme Court to consider the question 50 years ago. The Court declined the request for review.

It is long past time for the Court to address this inequality directly. And if our non-profit, Equal Citizens, can crowd-fund a sufficient commitment, we will file a lawsuit to challenge the current method by which most states allocate their electoral college votes.

Conservatives like to remind us that America is not “a democracy,” but “a republic.” Yet the core value of any “republic” is equality. Political necessity may have led the framers to compromise that equality. There is no justification for allowing the states to compromise it even more. your social media marketing partner


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+7 # bread and butter 2017-09-14 23:25
You'll reform the Electoral College when we have a Democratic President, and a Democratic Congress with a huge majority, AND both of them have political courage, and lack the need for kickbacks.

Yeah, that'll happen soon.
+6 # Navrongo80 2017-09-15 04:15
I ran the proportional electoral college votes after the election. In states with odd number of electors the winner of the popular vote took the odd elector. I did not allow ties in states with even number of electors. Also, no consideration was given to 3rd party voting. Clinton won 271 - 267. Clinton also won proportionally allowing ties by about the same margin.

In 10 states 3rd party voting was 10% or higher. If there was a threshold by which 3rd party candidates could garner electors one could assume this election would have gone to the House.

If the election had gone to the House, I fear we would still be waiting for the outcome. Think pork belly futures are hot right now? Just think of that scenario.
+2 # ericlipps 2017-09-15 04:58
The time has come to ABOLISH the Electoral College, which was crafted at east in part to allow slave states greater power to hold off emancipation by ensuring that no anti-slavery president got elected.
+3 # Diane_Wilkinson_Trefethen_aka_tref 2017-09-15 17:06
Quoting ericlipps:
The time has come to ABOLISH the Electoral College, which was crafted at east in part to allow slave states greater power to hold off emancipation by ensuring that no anti-slavery president got elected.
In other words, the Electoral College should go because of WHO crafted it, not because it was (or was not) badly crafted.

As framed in the Constitution, the EC has the value of supporting our republican form of government. [Remember - we ARE a republic. Just recite the Pledge of Allegiance if you doubt this.] The EC is part of why our form of government was called "The Great Experiment".
+5 # Rodion Raskolnikov 2017-09-15 11:44
There is no doubt that the US constitution was written to prevent democracy from happening. It empowered the most anti-democratic forces in the US, that is, southern white oligarchs.

But democracy has come to the US bit by bit and after a lot of struggle. It is very far from anything that could be called "democrach" however. We still live in an oligarchy.

Emma Goldman was right, "If voting made a difference it would be illegal." When women were given the right to vote in the 1920s, it was judged by analysts that no differences would be made. Women would vote in the same way that men voted -- stupidly.

Of course, the electoral college should go. But I wonder what good it will do. Now our modern day slave holding oligarchs will only have to run campaigns in New York and California to win the presidency. They already fund regional elections for house and senate members.

We need radical change, not some cosmetic wiping off of a minor problem like the E.C.
+6 # dbrize 2017-09-15 14:58
It's time we put to rest this infatuation with "democracy". In the first place, those screaming the loudest for it have either little idea what they are talking about or a more insidious motive.

There is no nation on earth with a pure (direct) democracy. For good reason. The Swiss come closest and to the extent they do, it works only because the cantons (the smallest units of government) have political power over the federal government.

This is what the FF's envisioned in crafting the Constitution. It's why many of the Federalists argued that the Central government would be limited by specific "designated" powers. They understood that "democracy" enables the tyranny of the majority at the expense of the minority.

Without the EC we would have a few highly populated, mostly urban states and regions in a perpetual majority.

As for the SC forcing states to proportion totals, highly unlikely.

It requires acceptance of the dubious proposition that the Constitution is unconstitutiona l. In this day of "penumbras and emanations" near anything is possible but this might require Justices take hallucinogens first.

Best bet, they will say if you don't like it, amend the Constitution.

But, its OPM, some folks like long shot bets. Good luck one and all.
+1 # lfeuille 2017-09-15 17:29
I prefer the plan for states to pledge all of their electoral votes to the winner of the national popular vote. Much less confusing and would exactly replicate the results that would be obtained by eliminating the electoral college entirely.
+3 # DocMary 2017-09-15 20:07
I salute you for the effort, but won't this end up in the Supreme Court, which is now more conservative (and personally self-serving) than the won that handed Bush the presidency in 2000?

Beyond that, the biggest impediment to getting rid of the electoral college is that it will take a constitutional amendment, and the same defects that make the electoral college increasingly dysfunctional (geography) are embedded in the process of approving a constitutional amendment. Those who benefit from the current arrangement would have to vote it out, and unfortunately, I can't see that happening.

FWIW, it was thrown into the Constitution at the last minute after James Wilson persuaded the convention to make it explicit that power resided in the people, and elect the president as governors of (almost) every state was elected. That spooked conservatives, so they threw in the electoral college as a buffer. Bad idea, hastily agreed to. We would have been better off with the original plan, a parliamentary procedure, given that the cost of having a popularly elected president was the electoral college.

I have heard it said that when Jefferson read the completed document (unfortunately, he was serving in France at the time), he said there were two major flaws: life appointments for justices, and the electoral college.

Wish we could get rid of both!

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