EqualVotes.US: Where we are, where we’re going

@Lessig Medium.com Oct 21, 2017 

Almost a year ago, a bunch of us began talking about how to fix an increasingly dangerous flaw in the mechanics of our Republic — the Electoral College. We had just witnessed the second in the last three Presidents get elected without winning the popular vote. It was quickly becoming apparent that this was not a once-in-a-century problem, but an increasingly likely part of our democratic future.

Anyone who knows my work knows that I’ve been waging the fight for a better Republic for a long time now. Throughout that fight, I’ve looked for the root. For most of that time, I thought the root was the corrupting influence of money in politics. But in the last two years, I’ve become convinced that money is just one example of a more fundamental flaw — a Republic in which citizens are not equal.

We can see that inequality in many places—in the way campaigns raise money, in the way gerrymandering renders irrelevant Republicans in safe Democratic seats, or Democrats in safe Republican seats, and in the way votes get suppressed. But until the election in 2016, I had missed perhaps the most obvious example — the way the electoral college makes our votes unequal.

I had missed it mainly because, like death and taxes, it seemed unavoidable. Yes, the Constitution could be changed — but in theory, only. And the brilliant hack of the National Popular Vote compact had hit a thick Red wall. In theory, this was a perfect fight. In reality, it seemed like a fight that no one could win.
But then I started reading the work of both lawyers and political scientists who had thought more carefully about this question. They saw something I had missed: The real problem with the College was not the College. The real problem was in the states. The College certainly made our votes unequal. But the real damage from that inequality was produced by the states.

That damage was winner-take-all — the rule that says that the winner of the popular vote gets all of the Electoral College votes. It was because (all but two of) the states allocated their electors in a winner-take-all manner that the real harm of the College was done. Winner-take-all meant that presidential campaigns were focused on a dozen states only; winner-take-all meant that the chance of a minority-elected president was high; and winner-take-all made America vulnerable to the games evil foreign governments might play, to hack our democracy and defeat majority will.

But the point most miss is this: winner-take-all is not part of the Constitution. The states started adopting the method after the Constitution was ratified; many bemoaned that decision from the very start. And while for most of our history, the constitution provided no enforceable principle to check winner-take-all, what this writing showed me was that the most recent decisions by the Supreme Court, applying the “one person, one vote” principle to the “presidential selection process,” gave us a way to get the Court to address this critical question for our democracy — does winner-take-all violate the principle of equality built into the 14th Amendment?

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