Why Courts, Part 2: Courts Are Good At Analyzing Equality

Jason Harrow @ Medium Sep 26, 2017

In my prior post, I explained why it’s helpful that, after we file our legal complaint, a court has to take up our case and tell us whether we win or lose. But that raises the question of whether a court can even consider the case and change the way states allocate their electors. Isn’t that up to the states themselves, under the Constitution?

Not exclusively: courts are allowed to weigh-in on whether states are violating principles of equality in the area of election law. And that’s why we have an opportunity to win in court.

To be specific, states don’t have unlimited latitude to allocate electors in any way they want, even though the Constitution says that electors are chosen “in such Manner as the Legislature thereof may direct.” The reason is that this line granting states wide latitude when it comes to allocating electors is not the only relevant part of the Constitution. Instead, when it comes to allocating electors and other aspects of election law, states are constrained by other parts of the Constitution. And a critical constitutional Amendment (the Fourteenth) says that states must grant everyone the equal protection of the laws.

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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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