Something that made me go “Hmmmmmm, I wonder”

By Whskyjack, a Trail Mix Contributor

I clipped a few paragraphs from an article  by Lawrence Lessig, it is a long piece but well worth the read and just maybe if …………

Lester Lawrence “Larry” Lessig III is an American academic, attorney, and political activist. He is the Roy L. Furman Professor of Law at Harvard Law School and the former director of the Edmond J. Safra Center for Ethics at Harvard University. Wikipedia

The Equal Protection argument against “winner take all” in the Electoral College

Most people, even Dems, can’t seem to allow themselves to even think about a constitutional challenge to the Electoral College — because they’re convinced our current Electoral College system is embedded in the Constitution. So when someone says, “what about one person, one vote,” they respond, “it’s the Constitution that creates this inequality—just as with the Senate—and the Court is not going to overrule the Constitution.”

Yet that response misses a critical point.

Yes, the Constitution creates an inequality because of the way it allocates electoral college votes. A state like Wyoming, for example, gets 3 electoral votes with a population of less than 600,000, while California gets 55 electoral votes with a population of more than 37 million. Thus, while California has a population that is 66x Wyoming, but only gets 18x the electoral college votes.

But the real inequality of the electoral college is created by the “winner take all” (WTA) rule for allocating electoral votes. WTA says that the person who wins the popular votes gets all the electoral college votes for that state. Every state (except Maine and Nebraska) allocates its electors based on WTA. But that system for allocating electoral votes is not mandated by the Constitution. It is created by the states. And so that raises what should be an obvious and much more fiercely contested question—why isn’t WTA being challenged by the Democrats in this election?


The 2000 election was the first time in US history that the candidate losing the popular vote won a majority of the Electoral College outright. Now that has happened again in 2016. The major contributing factors to this outcome are the winner-take-all system of allocating Electors coupled with the growing concentration of the US population in a handful of States. These factors create a substantial risk that a candidate that loses the popular vote would win the Electoral College outright even if the small state advantage did not exist. This election is a clear example of that risk. To be clear, Trump did not win the Electoral College because of a constitutional design, he won because of the winner-take-all system of allocating Electors and that critical legal factor is strictly a function of State law…………..

In summary, a winner-take-all system of allocating Electors by the states denies the minority of voters within each state any representation whatsoever within the Electoral College and ultimately in the case of the 2000 and 2016 elections, denies the plurality of voters nationwide their choice for President under circumstances in which the constitutionally established small state advantage made part of the Electoral College wouldnot. This is neither a reasonable nor a rational result in a representative democracy. This result was dictated by the winner-take-all method of allocating Electors used by the states. It is this state law method of allocating Electors that is an unconstitutional violation of the equal protection clause of the 14th Amendment and its bedrock principle of one man one vote.

To read it all


35 thoughts on “Something that made me go “Hmmmmmm, I wonder””

  1. an oddity of this new theme is that, while the link button works, the linked text isn’t highlighted. investigating …

    I cleared out some brush on the backend, our page speed ratings are back up

  2. still fiddling, got the link text highlighting to work, restored comment counter, other stuff to do

  3. jack, thanks. I have another question to follow up the one by lessig: “why isn’t WTA being challenged by the Democrats in this election?”…  it’s why just democrats?  since the unconstitutionality falls as an ungentle rain on all parties on the ballot, wouldn’t a libertarian, green or polka dot candidate have just as much ground?  and question #3 does it have to be a candidate or could a voter whose vote is diminished be a suitable sue-er?

    the enquiring mindless need to know.

  4. patd, ahhhh, the standing issue raises its head.  Standing is a perpetual bugaboo for an individual bringing suit against the government.

    Excerpts from a Justia article on the issue:

    Standing as a doctrine is composed of both constitutional and prudential restraints on the power of the federal courts to render decisions, and is almost exclusively concerned with such public law questions as determinations of constitutionality and review of administrative or other governmental action.  As such, it is often interpreted according to the prevailing philosophies of judicial activism and restraint and narrowly or broadly in terms of the viewed desirability of access to the courts by persons seeking to challenge legislation or other governmental action. The trend in the 1960s was to broaden access; in the 1970s, 1980s, and 1990s, it was to narrow access by stiffening the requirements of standing, although Court majorities were not entirely consistent. The major difficulty in setting forth the standards is that the Court’s generalizations and the results it achieves are often at variance.

    Citizen Suits.—Persons do not have standing to sue to enforce a constitutional provision when all they can show or claim is that they have an interest or have suffered an injury that is shared by all members of the public. Thus, a group of persons suing as citizens to litigate a contention that membership of Members of Congress in the military reserves constituted a violation of Article I,� 6, cl. 2, was denied standing. “The only interest all citizens share in the claim advanced by respondents is one which presents injury in the abstract…. [The] claimed nonobservance [of the clause], standing alone, would adversely affect only the generalized interest of all citizens in constitutional governance.

    You want a rule?  Ha!  The courts justify their standing decisions rather than apply specific rules, and do so inconsistently.

  5. How about removing the 2 electoral votes that represent each states senators ?

    Also, as state laws that prohibit or fine elector ‘faithlessness’ violate the 1st Amendment of the Constitution, we’d best make that violation clear by federal statute giving ‘free will’ to electors. It is not the business of government to enforce political party unity.

  6. craig, thanks for restoring the newspaper style banner.  also thanks for taking on the technical headaches  on the trail… our very own mixture of sherlock’s dr Watson,  star trek’s scotty and mr spock…. and throw in bob fosse for pizzaz

  7. flatus, what a bargain! this week Kroger has them on sale (that is not reg price) for $5.99.  my favorite is the pizzeria style supreme speciale.

  8. Donald Trump picks Gen. John Kelly for DHS secretary

    Kelly is the third general tapped by the president-elect, joining Gen. James Mattis, Mr. Trump’s pick to become the next secretary of Defense, and Lt. Gen. Michael Flynn, Mr. Trump’s incoming national security advisor.

    Like Mattis, Kelly is a Marine with a reputation for bluntness.

    Kelly was the commander of U.S. Southern Command until earlier this year. In that posting, he oversaw American military operations in South America and Central America.

    Before that, he commanded American forces numerous times in Iraq, and spent a year as the top Marine in that country. He then was an aide to defense secretaries Leon Panetta and Robert Gates.


    soooo how does “i know more than the generals” fit into these picks?

  9. Just stole this line from comments following an article at WaPo.

    “Everybody is in favor of free speech just as long as it’s speech they favor.”

    Ain’t it the truth?

  10. OK, Boss I think I posted a comment twice, edited it once, but both are still visible.  And you’re obviously tinkering – it’s back to a bit of a slow load, at least on the mobile device.

  11. Obviously no male with an R after their names should be allowed anywhere near a female of the species since it is now obvious they know absolutely nothing about how the anatomy functions.  At least that would keep them from breeding.



  12. pogo, do any of these anti-abortion bills ever provide state subsidies for taking care of the horrific cases of babies born without brains and other untreatable malformations making them unable to live beyond a few days?  are there provisions made for abandoned, abused and the orphaned?  are these so-called pro lifers really in favor of life after birth?

  13. patd, well, probably not.  If they lived long enough to apply they would be entitled to a disability determination, which comes with Medicaid, so in that sense, perhaps.   In reality, not that I’m aware of. AS to the rest of your inquiry — we all know the answer to those. No.

  14. Pogo, if you’re using an Apple device, not much I can do. They are such bastards, want $99 a month to access their code for new platforms. But as always before I will find pirate code to fix that. That is such an evil company.

  15. ha not your fault Pogo. I just get so frustrated battling Apple when I make these changes. Microsoft is so helpful by contrast.

  16. I mean seriously, I was able to get a Microsoft technician on the phone today to help me without any problem. But Apple wouldn’t even talk to me without signing up for $99 a month, which of course I refused to do.

  17. pogo I got some pirate code from a blog friend also victimized by evil apple corp. Let me know if any improvement.

  18. Arrrgh. Belay, ye trade w’ Apple, Cap’n. But, shiver me timbers, be we messin’ with pie rats now ?

  19. Craig

    I’m on Apple and all is well.  Might have something to do with my connection through X-Finity but I’m just whizzing along except when you are tinkering.


  20. Playing catch-up…and a few thoughts.

    Thanks Craig for working so hard to try and give us a smooth ride on the trail! It looks lovely and seems to be working well here…no apples in site. I’m going to try an image and see what happens though 😉

    I have a question for the class: Why aren’t there more people screaming like KO about the lunatic this country ‘elected’ who will either send us to war or turn us into the U.S.Inc.?

    Interesting Salon article about the lying jackass and his family conflicts of interest.

    Love the 360 dance Newt does here:

    “…I think the real corruption is the lack of the media being willing to be honest about how much lawlessness the Clintons stand for and how much they have ripped off the American people.”
    He repeated that charge numerous times throughout the course of the campaign and his claims were rated mostly false by Politifact.
    Here’s what Gingrich has to say now, quoted at length in a Politico article headlined, “GOP wagers Americans don’t care about Trump’s conflicts:
    “This is a great test case between the pre-Trump and post-Trump worlds. In a pre-Trump world dominated by left-wing ideas, anyone successful is inherently dangerous and should be punished for trying to serve the country. The American people knowingly voted for a businessman whose name is inextricably tied to his fortune. . . . I’d say to the left wing, get over it.”

    Note to the class: a newt is a slimy salamander…just sayin’ 🙂

    Final thought on the EC…One thing I believe is that unless those electors who are allowed by their states to vote their conscience step up and grow some balls, the US as we know it is over. #RESIST

    edit: the little gif I tried to put in ended up in the wrong spot as usual. Can’t remove it…oh well c’est la vie.

  21. Loaded like a charm.

    Flatus, watching LeBron have a 19/5 1st half against the knicks. Loving it.

  22. I am done tinkering now. Gonna leave it be for a while, see how it goes. Have done a bunch of house cleaning in the attic, yikes there was a lot of creepy crusty code up there.

  23. rippers speculate that the pruitt choice will be a bargaining chip to get the rest of menagerie through the Senate.

    I wonder what it feels like to be a bargaining chip, cynically proposed by a crook, and opposed by 3/4 of the country. That’s gotta be a really special feeling.

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