Harvard Law Prof Urges California, New York to Challenge Presidential Election


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Harvard Law Prof Urges California, New York to Challenge Presidential Election

Election Rules Violate Equal Protection Clause

Harvard professor Lawrence Lessig says New York and California should challenge state winner-take-all rules governing the electoral college.  (Photo by Thos Robinson/Getty Images)

Harvard professor Lawrence Lessig says New York and California should challenge state winner-take-all rules governing the electoral college. (Photo by Thos Robinson/Getty Images)

Harvard law school professor Lawrence Lessig has sparked an effort to urge attorneys general in California and New York to challenge the presidential election in the U.S. Supreme Court, arguing the current system of allocating Electoral College votes deprives voters of their constitutional rights.

A group called Taxpayers for Fairness has filed a petition on the site change.org, urging New York AG Eric Schneiderman to take action on behalf of New York voters.

So far almost 30,000 people have signed the petition.

Ironically, the legal challenge would be based on a Supreme Court decision in the 2000 election that threw the presidential election to Republican George W. Bush.

Of significance, the court ruled by a 7-to-2 majority that the Equal Protection Clause was applicable to how states counted votes in federal elections.

Lessig and others have argued that Electoral College votes should be award proportionally based on the popular vote. Such a system was never envisioned by the Founding Fathers, who recommended awarding votes based on congressional districts.

If votes were awarded proportionally, Clinton would have won the election with 270 electoral votes. Trump would have received 230. As it is, she won the popular vote by nearly 3 million votes, yet Trump won the Electoral College.

That fact that Clinton won the popular vote by a large margin yet lost the election has had a destabilizing effect on the election and raised questions about the legitimacy of Trump’s election.

The Constitution does not mandate the method the states use to select Electors. That decision was left up to the individual states.

Winner-take-all (WTA) rules emerged in the early 19th century as a way for state legislatures to control the federal election. James Madison expressed dismay at the trend in an 1823 letter to George Hay and warned of the dangers it presented.

Even so, the rule was enacted in most states by 1872 during the height of the Jim Crow era. Only Nebraska and Maine award electors proportionally.

Proponents argue that it gives small states a say in the election. But when applied to modern day elections the imbalance it causes is striking.

Atlanta lawyer Jerry L. Sims, has researched the legal argument and notes in a separate essay that a “reasonable argument” can be made that WTA rules are an unconstitutional denial of equal protection clause and the principle of one-man-one-vote. He explains:

Since the Electoral system was adopted vast changes have occurred in state populations, so that as of 2010 our least populous state, Wyoming had a population 563,626, and 3 presidential Electors, and our most populous State, California had a population of 37,253,956 and 55 presidential Electors. In other words, California had a population more than 66 times greater than Wyoming while having only 18 times as many presidential Electors. As of 2010 our most populous 9 States in aggregate have a larger population than the other 40 states and the District of Columbia combined. The large concentration of population in a handful of states combined with the winner-take-all method of selecting Electors has skewed the original constitutional design so that the likelihood that a candidate who loses the popular vote will win the Electoral College has become greater than ever before.”

“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,” Sims argues.

“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?” Lessig contends.

While some may argue that it’s unfair to Trump to change the rules now that the election is over, Lessig asserts that voters suffered the greater harm.

“What about the unfairness being felt by the millions of voters whose votes were effectively diluted, or essentially disenfranchised? Why doesn’t their harm also weigh in the balance?” he argues.

“It’s perfectly clear that the Attorney General of New York or California could walk into the Supreme Court tomorrow, and ask the Court to hear the case,” he adds. “Delaware tried to do this exactly fifty years ago, but the Court ducked the question.”

Schneiderman probably knows Trump better than any law enforcement officials in the nation. He’s witnessed first hand his unprincipled behavior and successfully sued him for fraud involving the defunct Trump University.

But this isn’t solely about Trump. It’s about restoring balance to our presidential elections to prevent the widespread denial of constitutional rights to millions of voters.

To read Lessig’s full essay and Sims’ legal argument click here.

  • Francis Lu

    *Worried about Trump’s conflicts of interest​ and​ related national security​ issues​?*

    At http://www.commoncause.org/democracy-wire/trump-conflicts-of-interest-may-violate-emoluments-clause.html which describes and contains the 12/16 document “The Emoluments Clause: Its Text, Meaning, And Application to Donald J. Trump” by Eisen, Painter, and Tribe, I have included in the comments section:

    1) The updated Jan. 2 letter to Trump from 12 orgs. plus individuals about conflicts of interest and the Emoluments Clause
    2) 3 lists of hyperlinked articles about Trump’s conflicts of interest and related national security issues
    3) 16 hyperlinked newspaper editorials arguing for a blind trust
    4) 4 videos of ​Mr. Painter​ and Mr. Eisen describing the meaning and significance of the Emoluments​ ​Clause
    5) 2 websites about the Trump-Russia-Putin ties
    6) A list of possible reasons WHY Trump is stonewalling on tax returns and the blind trust
    7) My statements on 12/21 and 1/1 calling to delay the Jan. 6 election certification

    Francis Lu, MD, Kim Professor in Cultural Psychiatry, Emeritus, UC Davis

  • Francis Lu

    McCain, Graham, Ryan and McConnell and other GOP leaders have courageously defended America against Russia by supporting the new sanctions. But they must now ensure that Trump himself is not a national security risk with conflicts of interest/debts with Russia and other countries and that he will not violate the Emoluments Clause of the Constitution. Congress—GOP and Democrats—can and must vote to delay the Jan. 6 certification of the Electoral College votes until they are provided the CIA/FBI/intelligence report, have examined Trump’s tax returns, and Trump agrees to a true blind trust. All Presidents since Carter have done the latter two (Obama had Treasury bills). If all checks out OK, then Americans can feel reassured that Congress has done its due diligence to preserve our democracy and national sovereignty.

    Otherwise, if on Jan. 6 Congress simply certifies the election, then on Jan. 20, democracy becomes a kleptocracy and our national sovereignty may well be sold out to Russia. Americans must defend America NOW as right after Pearl Harbor and 9/11. We have 17 days to steer Titanic away from the Trump iceberg.

    Congress can vote to move the Jan. 6 certification date back:

    Eisen and Painter on the Emoluments Clause 12/19: https://www.youtube.com/watch?v=q36z1L-u6cU

  • Captain Zettabyte

    This is so far off base, it’s funny. The Constitution specifically grants to individual states the right to choose presidential electors any way they want, period, end of story. There is absolutely nothing in the Constitution for or against winner take all, proportional awards by district, or any other electoral award scheme a state might dream up. The states have total and complete say in the matter. And please don’t bring up one-man one vote as some kind of magic bullet against the Electoral College. One man one vote entered the popular lexicon via the Baker vs. Carr Supreme Court case in 1962, and that pertained to drawing legislative districts at state and local levels only. One man one vote has NO EFFECT at the federal level, other than what’s already in the Constitution, which is basically the structure of the House of Representatives ONLY. The chance of any of these harebrained anti-electoral college lawsuits succeeding is zero and the people who are filing them look like complete idiots.