The Equal Protection Argument Against “Winner Take All”

in the Electoral College

Lawrence Lessig @ Medium Dec 4, 2016

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. 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, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led 5 justices to conclude the recount couldn’t continue. George Bush became president.

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.

Jason Harrow @ Medium: The Road To The Supreme Court

The Road To The Supreme Court Jason Harrow @ Medium Oct 5, 2017 The ultimate goal of the Equal Votes project is to have the U.S. Supreme Court find that the winner-take-all method of allocating electoral college votes violates the core “one person, one vote” principle...

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Lawrence Lessig @ Medium: “Selective constitutionalism”

"Selective Constitutionalism" Lawrence Lessig @ Medium Sep 16, 2017 Last week, we launched a campaign to raise the funds we need to bring an Equal Protection challenge to the winner-take-all system for allocating electoral college votes. Tons were really excited about...

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