FREQUENTLY ASKED QUESTIONS
- What’s the constitutional argument for Equal Votes?
- But doesn’t the Senate violate that principle?
- But isn’t the Electoral College the product of the same kind of compromise?
- But doesn’t the Constitution give the states “plenary power” to allocate their electors however they want?
- What do you mean by the majority in a state having “greater voting strength”? Can you explain that more?
- Except for elections in which the minority candidate gets a majority of the Electoral College votes, how does “winner take all” matter?
- Have others made the same argument?
- If you win, would that change the results of the 2016 election?
- If this system had been in effect in 2016, would Clinton have been elected?
- But isn’t the Electoral College designed to protect the small states? Wouldn’t a victory here weaken the power of the small states?
- Would states be able to allocate their Electoral College votes by congressional district rather than winner-take-all at the state level?
- Would winning this case threaten the National Popular Vote project?
- Will you win?
The Equal Votes Plan
1. What is Equal Votes?
Equal Votes is a crowdfunded legal challenge to the winner-take-all allocation of Electoral College votes. We believe the winner-take-all system is unconstitutional — a violation of the Equal Protection Clause that ensures all of us, and all of our votes, must be treated equally under the law. Over 52 million votes were ignored in the 2016 election because of winner-take-all.
2. What’s the plan?
The state-created winner-take-all allocation, which is not in the Constitution, gives the winner of a state all of the state’s Electoral College votes. That means that if you don’t vote for the winner in your state, your vote counts for zilch in the election. We have identified voters who are perpetually effectively disenfranchised by this system, and we will present their claim that they have been been denied representation in presidential elections for decades because of winner-take-all. We believe applying the “one person, one vote” principle means that states must allocate their electoral votes proportionally based on the popular vote result of the states, which will make our presidential elections fairer and improve voter participation. Our goal is to have the Supreme Court rule on our lawsuits in time for the 2020 presidential election.
3. Who’s behind Equal Votes?
People like you, who want our elections to be truly democratic and equal. Your donations will help Equal Votes, a project of Equal Citizens — a non-profit organization founded by Harvard Law Professor Lawrence Lessig — bring lawsuits that can change our unfair system in time for the 2020 election.
4. Why do you need to raise $250,000?
We have secured an initial commitment of pro bono legal work to enable us to launch this litigation project. But we will need to raise much more over the life of the litigation in order to win this case. To prove our case, cover the initial litigation expenses, and build a campaign to support the litigation, we needed to raise at least $250,000. We met our goal—now our legal team gets to work. But the costs of taking our case all the way to the Supreme Court will surely exceed our initial funds. You can chip in to support our efforts here.
5. How will the money be spent?
While our legal team (including Lessig) will work pro bono, a critical part of our case will depend upon careful empirical analysis. That work is expensive. There are other litigation expenses beyond legal services that need to be covered. We are also hoping to run an ongoing awareness campaign to educate the public on the problems with the Electoral College and rally support for reform.
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. By ignoring the votes of anyone who did not vote for the winner of the popular vote in a specific state, the way we elect our president currently violates that basic, constitutionally protected right.
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 “the 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. Except for elections in which the minority candidate gets a majority of the Electoral College votes, why does winner-take-all matter?
That’s a big exception, of course. It’s happened twice in our last five presidential elections, and two of our last three presidents have taken office without having won the popular vote. According to our estimates, there is about a 20% chance in any given election that a minority candidate will be chosen as president.
But even if that doesn’t happen, winner-take-all distorts the election in other 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. Altogether, the 14 battleground states saw 99% of ad spending and 95% of candidate campaign stops.
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 our president to a subset of America — a subset that does not truly or accurately represent America.
7. 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 “maybe legally vulnerable.” You can read his article here.
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 their article here, and a more recent piece by Duquette here.
But none have yet pressed the argument that Bush v. Gore effectively changes the standard for reviewing state rules affecting the voting system. We intend to make that argument applied to the “presidential selection” process.
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 third 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 14 states and ignore the other 36. This doesn’t make sense. Aren’t the residents of Texas and New York citizens as much as the residents of Colorado and Michigan are? 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 the Equal Protection clause. 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. While NPV would take many years to accomplish, Equal Votes is a change that can make our elections more democratic in time for the 2020 election.
In fact, we think Equal Votes and the NPV project work well together. We explain our argument in greater detail in this blog post.
6. Will you win?
We believe that the Supreme Court, even this Supreme Court, will agree with us that winner-take-all violates the 14th Amendment’s principle of “one person, one vote.”
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.
We are not saying we will certainly win. What is certain is that the rule will not change if we do nothing.