The Plan
1. What is Equal Votes?
Equal Votes is a project by Equal Citizens to make American presidential elections more democratic. The current Electoral College system gives voters in some states a lot more power than others. It has essentially made voters in non-swing states irrelevant to our presidential elections. Equal Votes will change the system to get us closer to the Constitutional principle of “one person, one vote.”
2. What’s the plan?
We want to bring a lawsuit to challenge the way states allocate their Electoral College votes. We believe the method all but two states use — ”winner take all” — unconstitutionally renders the votes of citizens unequal. We believe that states should allocate their electoral college votes proportionally, based on the popular vote in each state.
3. Who is behind Equal Votes?
Equal Votes was started by Equal Citizens, an organization founded by Harvard Law Professor Lawrence Lessig to bring more political equality to America’s elections. Equal Citizens is a coalition of concerned citizens, policy experts, legal experts, and academics who want to ensure that all Americans have the free and fair elections promised in the U.S. Constitution.
4. What happens if you don’t raise the $250,000?
We would return every contribution.
5. When is the deadline?
Our commitment is to return the money if we have not raised $250,000 by 11:59pm, Hawaii Time, May 31, 2017.
6. How will the money be spent?
We will use the money to fund the beginning of the litigation. While most of the lawyers will work pro bono, a critical part of our case will depend upon careful empirical analysis. That work is expensive.
The Constitutional Argument
1. What’s the constitutional argument for Equal Votes?
The 14th Amendment to the Constitution establishes a principle of equality that has been applied to systems that affect the weight of a citizen’s vote. This is the principle of “one person, one vote.” Roughly speaking, that principle requires that governments weigh the vote of citizens as equally as possible. As much as possible, “my” vote should be worth the same as “your” vote.
2. But doesn’t the Senate violate that principle?
It does. Massively. But as the Supreme Court has held, that exception was a condition of the “Great Compromise” that formed the Union. The equality principle of the 14th Amendment is thus subject to that exception.
3. But isn’t the Electoral College the product of the same kind of compromise?
Yes, it is. But we are not challenging the Electoral College. We are challenging the way states allocate their Electoral College votes. All but two states assign their votes according to the “winner take all” principle. We want to challenge that state imposed rule.
4. But doesn’t the Constitution give the states “plenary power” to allocate their electors however they want?
Yes, in Bush v. Gore (2000), the Supreme Court affirmed the principle that the states’ power over electors is “plenary.”
But in Bush v. Gore (2000), the Supreme Court also affirmed that “plenary” does not mean that the states are completely free from constitutional constraint when they allocate their electors. As the Court said in that case:
Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. … It must be remembered that “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. 531 U.S., at 104-05.
And as the Court reminded us in Bush v. Gore (2000), it has applied this principle directly to systems that affect presidential electors:
We relied on these principles in the context of the Presidential selection process in Moore v. Ogilvie, where we invalidated a county-based procedure that diluted the influence of citizens in large counties in the nominating process. There we observed that “[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government.” 531 U.S., at 107.
This is the essence of our claim: The majority in a state is given “greater voting strength” merely because they are the majority.
5. What do you mean by the majority in a state having “greater voting strength”? Can you explain that more?
Imagine a state with 1,000,000 votes. And imagine the Republican candidate gets 499,999 votes, and the Democratic candidate gets 500,001 votes. Under winner take all, all the Electors must vote for the Democrat — which means “one group” (the Democrats) are being “granted greater voting strength” than another (the Republicans). Though the state was essentially equally divided, the electoral votes give all the voting strength to the Democrats. Equal Votes is working to replace that unfair system with one that better reflects the wishes, and votes, of such a state.
6. But except for elections in which the minority candidate gets a majority of the Electoral College votes, how does “winner take all” matter?
That’s a big exception, of course. It’s happened twice in our last five Presidential elections. According to our estimates, there is about a 20% chance that a minority candidate will be chosen as president.
But even if that doesn’t happen, winner take all distorts the election in obvious ways. Because of winner take all, presidential campaigns are waged in “battleground” states only. In 2016, for example, 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.
This fact distorts presidential politics. Because these battleground states — representing just 35% of voters — are substantially different from the United States as a whole. They are older, and they are whiter. Winner take all effectively outsources the selection of a president to a subset of America — but a subset that does not in any sense represent America.
The Outcome
1. If you win, would that change the results of the 2016 election?
No. This lawsuit would be prospective only.
2. If this system had been in effect in 2016, would Clinton have been elected?
It’s unclear. That depends upon how the 3d party candidate votes are counted, and more importantly, how our plan would affect voter turnout. Currently, people in non-swing states know their votes don’t matter, so many of them don’t vote. If they realize their votes matter, there’s no telling what voter turnout could be like in non-swing states.
3. But isn’t the Electoral College designed to protect the small states? Wouldn’t a victory here weaken the power of the small states?
The Electoral College was certainly meant (in part) to protect the power of small states. But it doesn’t actually protect them.
As we described above, Presidential campaigns are run in about dozen states today: Wisconsin, Pennsylvania, New Hampshire, Minnesota, Ohio, Iowa, Virginia, Florida, Michigan, Nevada, Colorado, and North Carolina. With the exception of New Hampshire, those are not “small states.” These are swing states. The current system forces presidential candidates to focus their whole campaigns on the views of these 12 states and ignore the other 38. This doesn’t make sense. Aren’t the citizens of Texas and New York as much citizens as the citizens of Colorado and Michigan? Shouldn’t presidential candidates respond to their needs and concerns, too? By allotting electoral votes proportionally, candidates will finally pay attention to states that have been ignored for decades.
4. Would states be able to allocate their Electoral College votes by congressional district rather than winner-take-all at the state level?
No. The same principle that shows why winner-take-all at the state level violates equal protection shows why allocation by congressional district violates equal protection. Both create an unnecessary and unjustifiable inequality. Proportional distribution of electoral votes is more equitable than either of these other options.
5. Would winning this case threaten the National Popular Vote project?
Absolutely not. The essence of our case is the principle that votes should be counted equally. The NPV project is that principle, perfected. If the NPV project succeeds, then the President would be elected by a system that counted everyone’s vote equally. That’s why we strongly support the NPV project. But we can’t put all our eggs in one basket. Our aim is to press in as many contexts as we can to bring about the reform we believe essential.
6. Have others made the same argument?
Yes. While no case has yet presented the issue as we intend to, there are a number of scholars and researchers who have pointed to the same concern as we have. Most prominent among them is Professor Samuel Issacharoff, who, in 2005, wrote a powerful piece arguing that while the Electoral College is not unconstitutional, the state imposed rule of “winner take all” “may be legally vulnerable.”
Likewise, in 2005, Christopher Duquette and David Schultz made a similar argument about winner-take-all. As they have calculated, the current system for allocating electoral college votes produces “significant inequities in the voting power of citizens across states.” That difference, they argued, should make the current system “unconstitutional.” You can read the original article and a more recent piece by Duquette.
7. Will you win?
That question can be understood in two ways:
First, should we win? Yes. The principle of one person, one vote has been held to apply to the method for selecting the President, as recently as 2000. If it were applied to the state winner take all rule, the states would have no sufficient justification to overcome the requirement of equality.
Second, will the Court rule in your favor? The only reason they wouldn’t is the long settled practice that a victory in this case would disturb. That tradition gives them an excuse not to apply the principle of equality—if they wanted.
So we are certainly not saying we will certainly win. What is certain is that the rule will not change if we do nothing.