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
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.