As Democratic leaders such as Hillary Clinton call for elimination of the Electoral College, a Harvard professor who launched a brief, dark-horse Democratic presidential bid last year, is preparing to file a lawsuit challenging the way the nation elects its presidents.
Lawrence Lessig’s suit doesn’t propose getting rid of the Electoral College, which would require a constitutional amendment, but he contends the winner-take-all system used by 48 states in awarding electors unfairly focuses the presidential races on a handful of battlegrounds.
The professor – who tried to persuade 20 Trump electors to break rank and vote for Clinton a week before the Electoral College vote last December – wants to implement a system in which electors cast ballots based on a proportion of the popular vote a candidate receives.
“With a winner-take-all, most of America is ignored,” Lessig said, according to FoxNews.com, contending the system violates the 14th Amendment’s one-man-one-vote principle.
Currently, all but two states award all electors to the winner of the state’s popular vote. Lessig said 24 people have volunteered to be plaintiffs in his lawsuit. The Constitution doesn’t dictate how electors are awarded, and Maine and Nebraska award electors according to the vote in each congressional district.
“We are looking for a Republican from a blue state whose vote never counts and a Democrat from a red state whose vote never counts,” he said.
Lessig’s system wouldn’t necessarily have tipped the 2016 election to Hillary Clinton, because there are different ways to assign votes proportionally, including by the popular vote in each congressional district and by the percentage of the state popular vote.
Trump still would have won, for example, if Electoral College votes were allotted by the popular vote in each congressional district, according to the website 270 to Win.
Trump won 306 electoral votes in 2016 to Clinton’s 232, while Clinton garnered the most votes nationwide, with 48.5 percent to Trump’s 46.4 percent.
Separately, Lessig posted an essay this week contending there’s still a way that Clinton could become president. The first step is to prove Trump colluded with Russian agents to win the election, prompting Trump’s resignation or impeachment. That should, he contends, lead to Vice President Mike Pence’s impeachment, because he “benefited from the criminal (and treasonous) conspiracy just as much as Trump. Then the presidency would fall to Republican Speaker of the House Paul Ryan, who Lessig believes, might appoint Clinton his vice president and then resign. Lessig admitted: “I realize this all sounds crazy right now.”
Lessig’s legal team includes David Boies, the lead counsel for former Vice President Al Gore in the Bush v. Gore Supreme Court case in 2000, and Richard Painter, the chief White House ethics attorney under President George W. Bush.
Hillary Clinton, in an interview last month with CNN launching her campaign memoir, “What Happened,” said the Electoral College “needs to be eliminated,” adding, “I’d like to see us move beyond it, yes.” And activist filmmaker Michael Moore is warning fellow progressives the sytem for electing the president must change because he thinks Trump is on track to win again in 2020. Moore, who is three weeks into the run of his anti-Trump Broadway show, “The Terms of My Surrender,” contends Trump was “appointed” president because he is in the Oval Office without have won the most votes nationwide.
Defenders of the Electoral College argue that in creating a republic rather than a strict democracy, America’s Founders sought to strike a balance between pure majority rule and aristocracy.
In Federalist 68, Alexander Hamilton argued that while the people should have considerable power to choose the president, it’s “desirable” that “the immediate election should be made by 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.”
Heritage Foundation legal expert Hans von Spakovsky explained in a paper on the Electoral College that the Founders “struggled to satisfy each state’s demand for greater representation while attempting to balance popular sovereignty against the risk posed to the minority from majoritarian rule.”
The states are free to select the method in which they choose their electors, and in the early days of the republic, most states chose to have their legislatures pick the electors, rather than the people.
By the time of the Civil War, every state had shifted to the popular- election method.
Proponents of the Electoral College argue a pure national vote would make smaller states irrelevant, with campaigns focusing their energies on major population centers.
An organization called the the National Popular Vote Interstate Compact is pressing to change the current system through an amendment to the Constitution or a state compact. The group argues the state’s presidential candidates to spend most of their time in “swing states” rather than campaigning for votes across the entire country.
Von Spakovsky contests the assumption, because swing states “can change from election to election, and many states that are today considered to be reliably ‘blue’ or ‘red’ in the presidential race were recently unpredictable.”
Ten states and the District of Columbia have signed legislation since 2006 to join the compact. The agreement will be enacted, however, only when states with a total of 270 electoral votes have signed on.
Democrat Hillary Clinton won all 11 participating jurisdictions in 2016: California, Hawaii, Illinois, Massachusetts, Maryland, New Jersey, New York, Rhode Island, Vermont, Washington and D.C.
Legislators in Connecticut, Pennsylvania, Ohio and New Mexico plan to introduce bills to join the pact.
‘Recipe for France’?
Gary Rose, chairman of the political science department at Sacred Heart University and author of “Haywire: A Chronology of the 2016 Presidential Contest,” argued to FoxNews.com that the current state-by-state, winner-take-all system provides stability.
“Under a district plan, we could see a number of third-party candidates emerge, competing for a narrow portion of the vote by just running in congressional districts,” Rose said.
“A proportional system would be a recipe for France, a multi-party system, with a plethora of small parties that are hardly bigger than an interest group.”
He argued that while candidates visit only a handful of swing states now, a national popular vote system would concentrate campaigning in major cities and population centers, stripping smaller states of their power.
“A national popular vote would be a detriment to the American people, and many voters would really feel disenfranchised if the campaign moved only to the urban areas,” Rose said.