The winner-take-all state rules for the electoral college are unconstitutional…

…and we should press this argument now.

Larry Lessig makes the argument here, relaying the legal foundation by lawyer Jerry Sims and professors Chris Duquette and David Schultz. I’ll discuss below. I started writing this post yesterday, but last night, a Republican elector from Texas announced he would be voting against Trump, and this morning, there is a wave of interest in the Electoral College saving the republic this morning. It is magical thinking. Yes, the Electoral College was designed originally as a deliberative body to debate the qualifications of presidential candidates.  Hamilton in Federalist #68 wrote that electors should be “men most capable of analyzing the qualities adapted to the station and acting under circumstances favorable to deliberation, and to a judicious combination of all the reasons and inducements which were proper to govern their choice.” Hamilton wanted the electors to guard against foreign influences and unqualified candidates. He imagined that a national election and the Electoral College would safeguard against our current crisis: “Talents for low intrigue, and the little arts of popularity, may alone suffice to elevate a man to the first honors in a single State; but it will require other talents, and a different kind of merit, to establish him in the esteem and confidence of the whole Union.”

Alas, the problem is that politics have changed since 1787. Hamilton was writing at a time before political parties, at a time when state allegiances were more powerful than other allegiances. It was far more likely that states would nominate “favorite sons,” or maybe there would be a mix of four or five regional candidates, and no one candidate would be close to a majority. They did not have the time or the technology for run-off elections, but they could have a deliberative body debate and choose, and if they failed to reach a majority, the House was the next deliberative back-up.

The rise of the party system with Washington and Hamilton vs. Jefferson and Madison (and Burr) has not only made it to Broadway, but it also made Hamilton’s mechanism largely irrelevant. We don’t use the state vote as the initial selection and the Electoral College as the run-off stage. In almost every election since 1796, the parties have primaries to narrow down the race to two major candidates, and the national election is the “run-off,” so to speak. And even more relevant for our current moment, the parties control the Electoral College in a way Hamilton did not foresee. The parties choose mostly state and local officials, because the Constitution forbids the selection of federal officials.  In 2016, the state parties chose their loyalists to serve as electors, and the Republican Party has sold out completely to Trump. It turns out that most of the opposition to Trump in the GOP primary and in the midst of his various scandals this fall was driven by a fear of losing to Clinton, rather than a commitment to principles. Now that Trump won, they fear political backlash or worse from his hardcore anti-establishment base. These are not random Republican citizens; these are mostly ambitious mid-level politicians who depend upon party machines to keep rising up the state ranks into higher office. That’s why the party chose them. Trump remains popular among Republican voters. Betraying them would end any Republican political career. Exhibit A: Ted Cruz selling his soul once the winds shifted.

There is renewed hope today that 37 Republican electors will collude with Democratic electors to choose a different Republican like Kasich, Romney, or Bloomberg. Nonsense. The first problem is that such Trump-skeptic electors have resigned, rather than use their power. One such “NeverTrump” elector from Georgia resigned in August, and another from Texas resigned last week. Let me be clear: They are political cowards. Rather than stand up for their principles as electors, they are running away to save their moral purity or save their political careers, and let someone else do the dirty work of electing Trump.

The second problem is that all of these electors — 37 Republicans and 232 Democrats — would have to coordinate and decide on a single replacement in 13 days. The Electoral College meets on Dec. 19th. If they don’t hit the magic number of 270, the election goes to the House, which undoubtedly will pick Trump. Even if 37 Republican electors oppose Trump, could they ever agree on a moderate? Some of them oppose Trump for deeply religious right-wing fundamentalist reasons. They are not likely to find the Mormon Romney or the pro-choice, pro-gay Bloomberg to be worth the fight. On the other side, many Democratic electors are ideological purists, too. Some were chosen because they were Bernie loyalists, and there was a chaotic compromise this summer between the Clinton and Sanders campaigns over the slate of electors. That’s why two Washington electors from the Bernie camp openly threatened in October to vote for Trump rather than Clinton. I have a hard time seeing those two (or others) agree so quickly to vote for a free-trader, a pro-lifer, or pro-war Republican. Also, keep in mind that many states penalize such defections from the state majority winner with fines. Are both Republican electors or Democratic electors going to risk such fines for a cause that is very likely going to fall short of the goal? If you are going to aim for the king, you better not miss.

Third, it is important to remember the history is more complicated than the story that Hamilton told in the Federalist Papers for a New York audience. There was a less favorable story behind closed doors. The Electoral College was designed to protect state power, regional power, and geographic breadth. The Electoral College incorporated a protection for slavery: the 3/5ths compromise, Akhil Amar argues. In the Constitutional Convention, the South won a huge concession: for the apportionment of the House by population, each slave would be counted as 3/5ths of a white person, even though they couldn’t vote. Ostensibly, the idea was the members of Congress should represent not only voters, but all residents, including slaves (and women and children). In reality, the 3/5ths compromise was a bonus for slave states’ power. If the presidency were elected only by voters, the South would lose this bonus. The way to preserve the 3/5ths slave bonus vote over the Presidency was to tie the vote to Congressional representation state by state, rather than to tie the vote to actual voters. The Electoral College system gave slave states their 3/5ths slave bonus. Today, the Electoral College continues to give the former Confederacy and other smaller rural states a bonus.

That brings us back to Larry Lessig and the basic unfairness of the Electoral College. His opening observation has been around for a while: the Electoral College violates the principle of “one person, one vote.” For example, a voter in Wyoming has three times the power over the presidency as the average American, and four times the power of a Californian. Slate put together a map that shows the disparities in electoral college power state by state. (This is because of the Senate: The Electoral College gives one vote to each state per Congressperson PLUS two for each Senator.)  The Senate, of course, violates the same principle, but that design was explicitly part of the original constitutional compromise, so the courts have not applied this implicit constitutional rule to the explicit Senate design.

Some argue that the Electoral College was part of the original constitutional compromise, and if the Senate imbalance is constitutional regardless of the inequality, so is the Electoral College. The question here is not the Electoral College itself, but the winner-take-all system that creates the significant imbalance of apportionment. If the states adopted a rule giving their electors to the national vote winner, the equal protection problem disappears. And if the states adopted a proportional split by popular vote, again, the equal protection problem disappears. (South Dakota’s and Montana’s votes get split 2-1, an equitable apportionment, and California’s get split around 36 to 19, too, reflecting Clinton’s 62-31 win. Michigan would split 8-8, Virginia 7-6. States could avoid third party fracturing by giving electors only to candidates receiving over 5% or 10% of the state popular vote). Under this system, votes for president would no longer be diluted.

There is no rule in the Constitution for how states must allocate their electoral votes. In the early republic, some states assigned electors through the legislature, not the voters. Today, Maine and Nebraska assign one elector per congressional district. All of the other states have adopted winner-take-all allocation rules through state legislation. This rule was not part of the original Constitution at all.

Thus, this political choice is much more comparable to how states draw congressional districts, and the Equal Protection clause does apply to such state-based actions. Once upon a time, states drew districts with far fewer people in rural districts, to give rural voters far more power than urban voters.  The Warren Court found such systems unconstitutional in Baker v. Carr and Reynolds v. Sims in the 1960s. The worst of those state ratios were bigger than the four-to-one and three-to-one malapportionment ratios in the Electoral College, but Reynolds v. Sims suggested that even a two-to-one malapportionment would violate equal protection. The Electoral College subjects the majority of Americans to a vote dilution of at least two-to-one. Here is my favorite passage of Reynolds v. Sims:

Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. It could hardly be gainsaid that a constitutional claim had been asserted by an allegation that certain otherwise qualified voters had been entirely prohibited from voting for members of their state legislature. And, if a State should provide that the votes of citizens in one part of the State should be given two times, or five times, or 10 times the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted. It would appear extraordinary to suggest that a State could be constitutionally permitted to enact a law providing that certain of the State’s voters could vote two, five, or 10 times for their legislative representatives, while voters living elsewhere could vote only once. And it is inconceivable that a state law to the effect that, in counting votes for legislators, the votes of citizens in one part of the State would be multiplied by two, five, or 10, while the votes of persons in another area would be counted only at face value, could be constitutionally sustainable.”

See Reynolds v. Sims, 377 U.S. 533, 562-563, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964) (emphasis added).

Another major step in the argument is noting that the Supreme Court, by a 7-2 vote, applied equal protection to the presidential voting system in Bush v. Gore. I love how Lessig, Sims, Duquette, and Schultz  build on canonical precedents like Reynolds v. Sims as well as more poetic justice precedents (Bush v. Gore). I was skeptical when I saw this headline, but I think I’m persuaded, and it’s a test to see if Kennedy should be taken literally and seriously in the Bush v. Gore equal protection decision.

Is it too late to stop this electoral college meeting? Yes. We can’t get a court to intervene before Dec. 19th, and the fear of creating chaos would prevent any court from intervening now. But it’s not too late to stop the next violation of equal protection in 2020. This argument is solid. The question is whether five Justices would find it persuasive. Why not try?

*For what it’s worth, I like the National Popular Vote Interstate Compact. But it has it’s own problems. It’s an interesting solution for the Electoral College relying on state legislation instead on a  constitutional amendment. States pass legislation committing their electors to the national vote winner once enough other states have passed similar legislation to reach 270 electoral votes altogether. Great idea, right? The problem is that we are still dealing with human electors, and they can play the #HamiltonElector game or partisan elector game, too. Let’s say California, New York, Texas, Alabama, and a handful of other states pass such legislation, and together, they get to the winning threshold of 270 to make the rules effective. Then, let’s say Hillary Clinton wins the national popular vote, but Trump wins Texas by 10 points (that’s what happened this year) and Alabama by 30 points. Are we relying on Texas Democrats or Alabama Democrats to stick with Clinton over Trump?  Wouldn’t a few Southern Democrats have a lot to gain by voting for the vastly more popular candidate? Conversely, if Trump won the national vote, Republicans in California would have been lobbied to vote for Clinton. The same problem applies to the proportionate system discussed above, but a campaign can put their most reliable electors at the top of their lists, so the national vote winner is less likely to have defections.

 

Author: Jed Shugerman

Legal historian at Fordham Law School, teaching Torts, Administrative Law, and Constitutional History. Father of three, married to a Canadian, but I'm not laughing at any of the "So you really can move to Canada!" jokes in 2016. Red Sox and Celtics fan, youth soccer coach. Author of "The People's Courts: Pursuing Judicial Independence in America" (2012) on the rise of judicial elections in America. I'm working on the Emoluments litigation against Trump, as well as a history of prosecutors and American politics, and another project on the origins of "independent agencies" in America.

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