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As Bad As It Is, the Electoral College Could Get Even Worse

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Chief-Justice-John-Roberts“I applaud the brave bipartisan idea that the winner-take-all allocation of electoral votes is unconstitutional”

 

Larry Lessig proposes ONE MAGIC TRICK that could reform the Electoral College and possibly keep Trump out of the White House. The beginning is a trademark misreading of the political landscape:

In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim.

Let’s stop here. The idea that the equal protection argument cooked up by Republican lawyers to stop the recounts was “brilliant” is absurd. Leaving aside the lack of precedent supporting the argument, the obvious problem with the theory that the 14th Amendment requires recounts with uniform statewide standards is that the counts that would result in Bush winning were as or more constitutionally defective. The argument could succeed, in other words, only if the a majority of the Supreme Court were such completely in the tank partisan hacks that they would selectively apply an innovative equal protection argument to the narrow issue at hand while providing a remedy that was flagrantly inconsistent with the holding. Fortunately for Bush and his lawyers, they were!

But, of course, given the “partisan hacks willing to be utterly lawless” condition the quality of your argument is irrelevant. Rehnquist’s Article II argument was, if anything, even worse, but if O’Connor and Kennedy had to choose between signing on to it or risk Gore winning a recount, they would have gone along with it. Another implication, which is often forgotten by people who have for sixteen years insisted there must have been some magic legal and/or political strategy that could have allowed Gore to prevail, is that Gore was drawing dead. Given Republican control of the Florida legislature and executive branch, the Supreme Court, and the House of Representatives — that is, all of the relevant decision-making bodies — as soon as Bush finished the initial count ahead he was going to become president and the only question was how. We’ll be coming back to this point.

When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim

ARRRRRRRRRGH MAKE IT STOP!

I’ve been struck in this election cycle by just how timid Democrats have been about thinking in the same way. I’m not (yet) saying they necessarily should. But it is striking to see how committed they are to allowing this train wreck to occur. And more surprisingly, how little careful attention has been given (at the top at least) to just how vulnerable—given Bush v. Gore—the current (system for counting votes in the) electoral college is.

With unusual candor, the per curiam opinion in Bush v. Gore told you it would have no precedential value: “Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.” It doesn’t make anything “vulnerable,” let alone the Electoral College.

Anyway, this whole argument that the Democrats could stop Trump from becoming president but are just being “timid” is at least as silly as the idea that Al Gore could have made Jeb Bush, Antonin Scalia, and/or Tom DeLay put him the White House if he had just made a clever enough argument. No federal judge is going to take this challenge to the Electoral College seriously, and even if you could somehow stop the Electoral College from picking Trump there is zero chance a Republican House will certify anybody but Donald Trump as the winner of the election anyway.

So as a practical strategy, Lessig’s theory isn’t even worth discussing, but perhaps we can think about it as a longer-range approach. So what’s the theory?

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?

Ummmm…maybe because every state using Maine and Nebraska’s allocation of electoral votes would be an anti-democratic catastrophe that would also give the Republican Party an essentially unbreakable lock on the White House for the foreseeable future? Why on Earth would Democrats want winner-take-all allocation unconstitutional?

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. Delaware tried to do this exactly fifty years ago, but the Court ducked the question. But based on that complaint, were I a citizen of California, I’d ask my current AG (and future Senator) why hasn’t CA done the same thing? And were I a citizen of New York, I’d ask my AG the same. Why are these big states standing by quietly as their voters are essentially silenced by the unconstitutional inequality?

It is certainly mysterious that the Attorneys General of New York and California have not demanded that the Supreme Court here a frivolous argument that would result in essentially ensuring that the Republican Party would permanently occupy the White House irrespective of the popular vote.

Meanwhile, as I’ve tried to get people to consider the question, I can almost feel the dynamic of their resistance. “This is beneath us,” they seem to sneer. “It’s the sort of thing only ‘they’ do.” To which the only fair response is — right, but that’s what they do, and because they did it in Bush v. Gore, that case gives Democrats the hook they need to do it now. And when people say “there would be a revolution if the Court decided this election,” why isn’t the response, “why wasn’t there a revolution when the Court effectively mandated the loser of the popular vote (Bush) had to be President?”

I like this. “If people disagree with my argument, it can’t be because they think it’s silly and unworkable. It’s because they’re scared.”

Lessig then presents an argument from Jerry Sims that defends the proposition that “the allocation of State presidential Electors on a winner-take-all basis is an unconstitutional denial of the equal protection of the law and the principle of one man one vote.” It expends many words before addressing this rather critical objection. And here, the writing is very muddy and confusing:

15. I think it is important that the argument be made that either proportional selection of Electors be allowed on the State level or winner-take-all selection of Electors be allowed based on the national vote. The winner-take-all method on the national vote level could serve as a backstop to use in the event a political party moves to gerrymandered district voting for Electors. That methodology would also provide some insurance against the increased risk of elections being thrown into the House of Representatives due to some Electors being allocated to third-party candidates. This is a greater risk of having elections thrown into the house of Representatives using proportional selection of Electors even if a minimum cutoff of 10% of the vote if required for a candidate to be eligible for allocation of Electors. Finally both options would encourage voters to turn out because under both methods all votes are count and are equally important. Under current methodology democratic votes in heavily Red States play no role in the outcome of the election and the same is true of Republican votes in heavily Blue States.

Allowing “winner-take-all” allocation if it’s based on the national popular vote strikes me as completely incoherent — aren’t voters of the party in the states that didn’t win the popular vote still being “disenfranchised?” Even stranger is the “backstop” language. Even if? Many state legislatures are already gerrymandered, and even just ordinary redistricting would have Republicans a major advantage. Democratic legislatures in big states might be able to counteract this by using selective winner-take-all, but this would be a complete mess that’s even worse than the current system.

And, of course, this argument ignores the fact that the Supreme Court is about to have a Republican majority. Were the Court to accept an argument that winner-take-all allocation was unconstitutional, they would almost certainly just rule say that and leave it there, which would have utterly catastrophic results. As bad as the Electoral College is, the possibility that a state like Michigan might move to allocating electoral votes by congressional district could make it far worse than it is. The idea that liberals should be legitimizing this argument by suggesting that winner-take-all allocation was forbidden by the Constitution — even if the precise form of the argument might mitigate the damage — is frankly crazy.

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  • LeeEsq

    Lessing’s argument makes the trillion dollar coin seem pragmatic and sedate in comparison.

  • Dirty Davey

    There is a difference between proportional allocation and the Maine/Nebraska system of allocation by congressional district with two to the statewide winner. Straight proportional allocation could be a great improvement on winner-take-all, especially if the rules were written so that most 3-EV states were split 2-1 rather than 3-0. (That is, so that the threshold for going 3-0 is closer to 80-20 than to 67-33.)

    One assumes that if an equal protection argument were used to find WTA unconstitutional, the ME/NE system would also be unconstitutional given the ability of gerrymandering to affect the allocation from a state.

    • Scott Lemieux

      Ok, but obviously no Republican Supreme Court is actually going to buy that argument, so the holding that winner-take-all is unconstitutional will eithr fail or result in even worse results.

    • Manny Kant

      I believe proportional allocation within each state would have given Clinton a plurality and thrown the election to the House, which would have chosen Trump.

      • Cheerfull

        Johnson would have picked up a vote or two? Or would it be McMullin? Or I suppose both.

        • Manny Kant

          So I figured it out by multiplying the number of electoral votes in each state by the percentage of each candidate, and rounding as appropriate. If there ends up being an extra vote because of multiple candidates rounding down, it went to the candidate with the largest fraction.

          Under this way of calculating, Johnson would get several electoral votes; Stein and McMullin each one (Stein from California, McMullin from Utah)

          Final count:

          Clinton 263
          Trump 261
          Johnson 12
          Stein 1

          And off to the House, where Trump becomes president.

          • Richard Gadsden

            That’s a system called LR-Hare (allocation using the Hare quota with largest remainder) which is unlikely to be the one chosen, but is the easiest to run numbers on quickly.

            At a guess, the actual US would use Huntingdon-Hill, being the form of proportional allocation already in use there (it’s a highest averages system approximately halfway between d’Hondt and Sainte-Laguë for the nerds amongst us. Speaking of nerds, where’s Gregor Sansa?)

      • JKTH

        That’s about right though it depends on whether/how they round EVs in each state.

      • Scott Lemieux

        I believe proportional allocation within each state would have given Clinton a plurality and thrown the election to the House, which would have chosen Trump.

        Correct. And of course third party support would likely increase under mandated PR, which would basically give the GOP the presidency as long as it can expect to control a majority of state House delegations.

        • numbers

          All of this discussion about the EC misses one important fact. If you want to give states significant power in a federal system, especially if it will determine the balance of national power, you want state boundaries to be determined by rational and consistent criteria. Our states are a mishmash of historical accidents and arbitrary lines on inaccurate and incomplete maps. They do not reflect coherent ethnic, social, ideological, or even geographical polities. Wishful thinking, I know, but smart federal systems require smart subfederal divisions.

        • Richard Gadsden

          Unless a third party did a deal to form coalition and direct its EC votes to the Democrat.

      • Jameson Quinn

        If you have a 5% threshold for third parties, it comes out 270-267-1, Clinton wins. If you have the 5% threshold but make sure no states end up 50/50, it comes out 269-268-1, which is actually a Clinton win too if I’m reading the Constitution right.

        • numbers

          NM and CO would both give one EV to Johnson with a 5% threshold.

        • Scott Lemieux

          Nope — if no candidate gets 270 it goes into the House.

          • BartletForGallifrey

            House and Senate?

            The Congress is scheduled to meet in joint session in the House of Representatives on January 6, 2017 to conduct the official tally of electoral votes. The Vice President, as President of the Senate, is the presiding officer. Two tellers are appointed to open, present and record the votes of the States in alphabetical order. The President of the Senate announces the results of the vote and declares which persons, if any, have been elected President and Vice President of the United States. The results are entered into the official journals of the House and Senate. The President of the Senate then calls for objections to be made.

            • Richard Gadsden

              House for the President, Senate for the VP.

    • Cheerfull

      Has anybody looked at how straight proportional voting would work, i.e. you capture a proportion of each state’s electoral votes based on a proportion of their popular vote? My uninformed sense is that though there are are some small blue state/quasi states , i.e. Vermont, D.C., Delaware, RI, that there are more such red states, and thus that there would be slight Republican advantage based on the fact that electoral votes themselves are distributed disproportionately to population.

      But this does sound like a fun thing for the mathematically inclined to check out.

      • numbers

        It depends on your assumptions, but I got Clinton 261, Trump 261, Johnson 14, McMullin 1, Stein 1

        • numbers

          So yes, there is still a slight Republican advantage (Clinton/Trump tied despite Clinton’s 2% lead), and even minor spoiler candidates (Johnson’s 3.3%) throw the election to the House.

        • Manny Kant

          Yeah, I got almost that, but 263 for Clinton and 12 for Johnson.

  • Sebastian_h

    Lessig has a ridiculous legal argument.

    I’m asking this for clarification only.

    Isn’t the main objection to representative allocation of electoral votes the fact that if done by some states but not others, it would dilute the importance of those states dramatically without fixing the situation until all or at least most of the states went with it?

    He is ridiculous about how to get there, and you’re especially correct about how dangerous it would be to propose that winner takes all isn’t allowed without making clear that proportional is required, but I think you may be wrong about the idea that if it were all proportional it would end up in a Republican lock.

    Which makes it useless fantasizing. But I just want to understand how his end state works.

    • Scott Lemieux

      I support the National Popular Vote, although I have doubts about whether it would work and as long as Republicans control a majority of state legislatures, it’s moot. But I don’t think that a constitutional argument is how you get there.

      • Sebastian_h

        Ok, that makes sense to me. The Constitutional argument is definitely silly.

      • rea

        The constitutional argument is silly because the constitution does not require a popular vote for president. State legislatures can simply appoint a set of electors if they want.

      • Murc

        I support the National Popular Vote, although I have doubts about whether it would work and as long as Republicans control a majority of state legislatures, it’s moot.

        … how so?

        National Popular Vote kicks in once enough states have signed on to get to 271, doesn’t it? You can assemble that with way, WAY less than a majority of state legislatures.

        It might be moot for other reasons but this doesn’t seem well-reasoned.

        • Manny Kant

          I assume Scott meant “as long as Republicans control state legislatures that control a majority of the electoral college.”

        • David Hunt

          I haven’t looked at an EC map and compared it to info on which party controls which statehouses, but I’m guessing that you need several states that are have GOP controlled legislatures to pass a National Popular Vote bill before you have enough EC votes to trigger it. No GOP controlled legislature is ever going to do that. It has been made perfectly obvious by the 2000 and 2016 elections that while the EC has always been a loaded hair-trigger gun just lying around waiting to go off, when it does fire it always seems to hit a Democrat. In the last 25 years, a Republican has won the popular vote exactly once in 2004. There need the EC in its current form if they want control of the White House.

      • MDrew

        I support the National Popular Vote, although I have doubts about whether it would work

        I agree with both of these clauses, but would be curious to hear about the specifics of the latter.

        It seems to me that the lack of a centralized (to say nothing of, official!) counter would present dizzying practical problems for states in determining when the conditions in their EV allocation statutes are satisfied.

        Is that what you have in mind? Or something else?

    • efgoldman

      I think you may be wrong about the idea that if it were all proportional it would end up in a Republican lock.

      Michigan and I think PA briefly entertained the idea, in their state legislatures, of moving EVs to district proportional, for exactly the reason that Scott outlined. I believe actual bills were introduced in both states, but the politics made them impossible to pass.
      Ironically, the Republiklowns wanted to do it so they could steal some EVs from their reliably blue totals. In the “be careful what you wish for” column, this year it would have had the opposite effect.

  • Dilan Esper

    I don’t agree with everything Scott says in this post, but I appreciate the fact he made it.

    Lessig is acting as a big-time hack and has been ever since November 8. I understand his frustrations about Trump being elected, as well as the affront to democracy that the electoral college surely is, but you can’t simply decide the law is whatever you would like it to be to overturn the result of an election, and we certainly can’t get into the business of changing rules that we all thought worked a certain way for 200 years.

    And as bad as Bush v. Gore was– and it was just about as awful as Scott says it was– it was also very much a one-off. You had an election decided within the recount margin of a single state. It wasn’t a mandate for the courts to go around mucking into every presidential election or an invitation for creative legal arguments every four years. At most, it stands for the principle that in really, really close elections, perhaps the Supreme Court has some misguided belief that it has a mandate to settle things and end the counts. That’s awful as a matter of constitutional law, but it just doesn’t apply here.

    • Paul Campos

      you can’t simply decide the law is whatever you would like it to be to overturn the result of an election, and we certainly can’t get into the business of changing rules that we all thought worked a certain way for 200 years.

      HAHAHAHAHAHAHAHAHAHAHAHAHAHA

      perhaps the Supreme Court has some misguided belief that it has a mandate to settle things and end the counts. That’s awful as a matter of constitutional law, but it just doesn’t apply here.

      Stop it you’re killing me.

      • Dilan Esper

        Paul:

        Sorry this comment isn’t threaded. The threading isn’t working for me.

        I honestly do not understand the sarcasm. The Supreme Court obviously does not intervene in the vast majority of Presidential elections. It has done so twice, and both times in extremely close elections within the recount margin of one state.

        They aren’t interested in arguments right now as to how Trump isn’t the President-elect, and they also weren’t interested in arguments about how Obama wasn’t the President-elect either.

        The Presidential election cases, including MacPherson v. Blacker as well as the two Bush cases, are all terrible precedents. But they are, indeed, very limited ones, based on this role the Court seems to think it has of adjudicating extremely close presidential elections for the “good of the country”.

        • Scott Lemieux

          I think Paul’s point is that you’re giving Republicans on the Supreme Court too much credit. Shelby County is the latest example that they would absolutely be willing to do Bush v. Gore again if they were in a position to decide an election. And one really obvious problem with Lessig’s argument is that he believes (or pretends to believe) that Bush v. Gore was actually constitutional law and Republican judges would be receptive to constitutional arguments that don’t advance their party’s interests.

          • Paul Campos

            Right.

            Apparently legal realism hasn’t gotten to Cambridge quite yet.

          • Dilan Esper

            I’m giving them no credit. When they intervene the result will always be partisan.

            I’m just saying they won’t intervene most of the time. The doctrines are a combination of partisanship and a messiah complex.

    • SoRefined

      At this point I don’t think anyone is seriously talking about changing the electoral college situation for the 2016 election, so nothing is being ‘overturned.’

      I think it’s fair to look at the system we have and say “twice in five elections there has been a split between the electoral college and the popular vote; does this mean that something that we thought worked a certain way for 200 years still work?” and if the answer is no, then there should be change.

      After all, did we not change the way we elected the president after the election of 1796 resulted in candidates from opposing political parties landing in the White House?

      Especially since we’ve agreed that we’re no longer expanding congress as the population grows, just shifting the distribution of congressional seats around, the electoral college may no longer work as a proxy for the national popular vote.

      • rea

        After all, did we not change the way we elected the president after the election of 1796 resulted in candidates from opposing political parties landing in the White House?

        We did not.

        (We changed it after the election of 1800 left two candidates from the same party fighting it out in the House).

        • SoRefined

          Okay, so my original thought was 1800, but then I was like, “Adams was the President and Jefferson the vice president when that whole ‘oops opposing parties’ thing happened” and I revised. Should have gone with my gut.

    • MDrew

      we certainly can’t get into the business of changing rules that we all thought worked a certain way for 200 years.

      Meaning, within one election cycle, or certainly between popular and electoral voting, right?

      I mean, we could (I mean, we can’t, but if we could, we could, irrespective that the old rules were 200 years old) change the rules for 2020 now, couldn’t we?

  • rewenzo

    It seems to me easier to just get rid of the electoral college. The easy way to do this is to have George Soros give $5 million to each Republican elector to vote for Hillary. (Why is he wasting this money on protesters when he only needs to actually bribe 30 people?)

    Then there will be bipartisan support to get rid of the Electoral College.

    • so-in-so

      Give them three million, spend the other two on the hit man to kill them messily if they fail to follow through.

    • Manny Kant

      That is illegal, as I understand it. Though I’m not sure that would make those electors’ votes invalid.

      • BartletForGallifrey

        The easy way to do this is to have George Soros give $5 million to each Republican elector to vote for Hillary.

        The wingnuts already think he (alreadyand others) is anyway.

        But, as has been noted, the House wouldn’t certify it.

        Clearly what we need is a poorer House.

        • BartletForGallifrey

          Uh…I can haz edit button back?

        • Manny Kant

          But if Soros bribes 75 Trump electors to vote Clinton, and those votes all get thrown out, then Clinton would win electoral college 232-231, no?

          • Richard Gadsden

            No, “if such number be a majority of the whole number of Electors appointed”

  • Hogan

    I think it is important that the argument be made that either proportional selection of Electors be allowed on the State level or winner-take-all selection of Electors be allowed based on the national vote.

    If we’re basing the outcome on the national vote, why the fuck do we need electors?

    • yet_another_lawyer

      We already don’t need electors, in that they’re mere functionaries and have been for quite some time (fantasies about faithless electors aside). They’re stubborn little buggers.

    • rewenzo

      I think it’s because the Constitution requires electors, but does not mandate a particular method of electing them. The question raised by Lessig et al is whether the means by which we currently elect these electors is actually unconstitutional.

  • altofront

    From your 2014 post linked above:

    For the electoral college to subvert the popular vote, you now generally need an unusual confluence of circumstances — a razor-close vote and voter purges and administrative incompetence and a mendaciously narcissistic vanity candidate and a nakedly partisan Supreme Court.

    Prescient!

    I wonder if the narrow Republican victories in MI, PA, WI, OH, NC, and FL will stop their state legislatures from trying the CD-scam again: why settle for two-thirds of the loaf when you can get the whole thing? I hope so. It’s surprising, really, that none of these states managed to put it into place before: at the soundbite level it sounds plausibly fair.

    • Just_Dropping_By

      I wonder if the narrow Republican victories in MI, PA, WI, OH, NC, and FL will stop their state legislatures from trying the CD-scam again: why settle for two-thirds of the loaf when you can get the whole thing? I hope so. It’s surprising, really, that none of these states managed to put it into place before: at the soundbite level it sounds plausibly fair.

      IIRC, when this was proposed in PA a few years ago, suburban Republican legislators in the Philadelphia and Pittsburgh areas went against it because there were a number of state legislative districts whose electoral demographics suggest they “should” go Democratic, but presently have incumbent Republicans. Thus, if the proposal to divide up electoral votes by congressional district had been implemented, the Democrats suddenly would have been much more motivated to do GOTV work in these legislative districts, which might not have flipped congressional districts but likely would have wiped out some part of the incumbent state legislators.

      • Denverite

        For the electoral college to subvert the popular vote, you now generally need an unusual confluence of circumstances — a razor-close vote and voter purges and administrative incompetence and a mendaciously narcissistic vanity candidate and a nakedly partisan Supreme Court.

        That’s not a very good batting average. Arguably none of those contributed to this election, and inarguably the vote wasn’t close, there was no administrative incompetence, and the Supreme Court didn’t play a role.

        • altofront

          I was stuck on “mendaciously narcissistic vanity candidate,” though I recognize Scott meant “as a spoiler,” not as the Republican nominee.

        • BartletForGallifrey

          voter purges and administrative incompetence and a mendaciously narcissistic vanity candidate

          Arguably none of those contributed to this election

          “Arguably” is sure doing a lot of work there.

          • Denverite

            I don’t think so. As Scott has said, any argument that vote suppression or Stein cost Clinton the election crashes into Pennsylvania. She probably loses the state no matter what. For this reason, I think “arguably” is a bit weak, actually.

            • BartletForGallifrey

              Pennsylvania results:
              DJT: 2,970,764 (48.58%)
              HRC: 2,926,457 (47.85%)
              Jill: 49,947 (.82%)

              2,926,457 + 49,947 = 2,976,404

              I’m not an expert or anything here, but I believe that 2,976,404 is more than 2,970,764.

              • Scott Lemieux

                Yeah, but you can’t assume every Stein voter would vote for Clinton if she wasn’t in the race, and you would need almost all of them.

                Look, as I may have mentioned once or twice if Jill Stein was on fire I wouldn’t even piss on her to tell her my urine was the same as Pappy Wan Winkle 21. But she didn’t throw the election to Trump; she just tried to.

  • Gwen

    Proportional representation at the state level is not a bad idea, but it certainly isn’t a Constitutional mandate.

    Moreover, it doesn’t do anything to resolve the fact that small/rural states are over-represented.

    The National Popular Vote compact is a better idea from a policy level, and achievable politically.

    Another (albeit less likely) reform project might be to create some national “at large” electors (maybe 10 percent of the total) that would be allocated to the winner of the national popular vote. This would of course require a Constitutional amendment.

    • Manny Kant

      That would be 60 at-large electors, which would give Clinton 292 electoral votes and Trump 306.

      • Manny Kant

        But if you set the at-large electors to 20% of the electoral college, Clinton would get 367 to Trump’s 306.

        • liberalrob

          I’m sure a bill to pass a law creating a bonus pool of electoral votes (I nominate the term “Superelectors”!) that are assigned to the winner of the popular vote will just sail through Congress.

          And since the apportionment of electors is laid out in the Constitution, wouldn’t it require a Constitutional Amendment?

  • sleepyirv

    I see Larry Lessig is adding to his record of being the George McClellan of legal/political work: an incredibly intelligent and otherwise skillful person who is so lacking in strategic thought that it renders his other skills moot, with a nasty tendency to condescend to those who won’t recognize his genius. After losing the battle of patents, and taking shots at an actual competent field general, Lessig followed McClellan’s to run a short-sighted presidential campaign.

    After a resume like that, it’s nice to see Lessig isn’t resting on his laurels. I can’t wait for his essay “Liberals could have argued children have standing to sue on global warming issues in front of the Trump Supreme Court and they didn’t even try!”

    • Scott Lemieux

      Lessig’s criticisms of Verelli are awesome. The late Greg Lake has nothing on Lessig’s pretension-to-achievement ratio.

  • I do have to wonder: how much more concentration of population can the electoral system endure? If more and more liberals concentrate in the cities and coastal states, is it possible for a candidate to get, say, 5% more on the national popular vote and still lose the EC? 10%? I know that seems to be extreme, but so is Trump.

    • JKTH

      In this election, Trump still would have won if the popular vote had shifted uniformly by 1%, where Clinton would be entering Obama 2012 territory. You could see Democrats gaining disproportionately in 2020 in large states (CA, GA, NY, TX) without gaining enough in the swing states to win, so it’s not hard to imagine the margin going to 4%. 5% is a bit harder obviously but it doesn’t seem totally out of the question.

      • Mark Field

        The 1% figure you use is inconsistent with the margins shown by Dave Leip. All three of PA, MI, and WI were decided by less than 1%, so a uniform shift of that magnitude would have elected Hillary (and she’d have come close to winning FL as well).

        • JKTH

          I was just going off memory, which was based on older voting totals so you’re right, but it’s not that far off from what I said.

    • Matt McIrvin

      If more and more liberals concentrate in the cities and coastal states, is it possible for a candidate to get, say, 5% more on the national popular vote and still lose the EC? 10%?

      In theory, a candidate could win the EC with almost 0% of the popular vote. Imagine that many states become “rotten boroughs” that are almost completely depopulated. They could swing the Electoral College by themselves with a handful of votes in each.

      • This will become a problem as people start migrating to escape global warming. Imagine vast areas of the mid-west that are depopulated as it turns into the new dust bowl. They would still have their electoral votes and representation in the Senate and House, even though few people might still live there.

        • Manny Kant

          They’d have their House representatives only until the next census, though they’d have one no matter how low the population got.

    • BartletForGallifrey

      how much more concentration of population can the electoral system endure

      You’re implying that it’s currently enduring this much. A 2.7 million vote difference seems to me to be a complete and total failure of the system beyond anything the Framers could have imagined.

      If it had gone the other way, Republican voters would be in the streets, armed. They would be sending death threats, not polite letters, to electors. Republican Congressmen would be refusing to certify the vote. (Which I realize we don’t have the power to do–but I don’t believe that we would anyway.)

      When the only reason the country isn’t in a state of mass chaos is because Democrats are calm and non-violent, the system is already broken.

  • What *is* Lessig smart about? Something?

    • sleepyirv

      His diagnosis of problems are very good like in Republic, Lost. It’s just his prescriptions are completely unrelated to the disease.

  • Tracy Lightcap

    A minor quibble about your 2014 post.

    There was one state that did use an electoral mechanism like the EC in statewide elections: Georgia. For a long time being elected to be the Democratic candidate for governor (or, to put it short, governor) you had to win a majority of the “county unit” votes. This was just like the EC; all counties got at least 2 CU votes, the slightly larger ones got 3, and the really big ones (there were only 3 of these: roughly Atlanta, Savannah, and Columbus) 5. The popular vote didn’t matter, just the CU votes. And, sure enough, this was justified along the same lines (in public at least) as the EC; made sure the small counties got attention, republic, not democracy, ect.

    The real reason was to solidify rural – i.e. white – control of the Democratic party, especially after the white primary was declared unconstitutional.

    • Manny Kant

      The real reason was to solidify rural – i.e. white – control of the Democratic party, especially after the white primary was declared unconstitutional.

      Was the African-American population of Georgia in the early twentieth century significantly more urban than the white population?

      I assume the court’s “one man, one vote” cases in the 60s ruled this kind of thing unconstitutional?

      • Hogan

        Was the African-American population of Georgia in the early twentieth century significantly more urban than the white population?

        Probably not, but they weren’t voting in the early twentieth century. I bet the Republican population was significantly more urban.

      • Tracy Lightcap

        It wasn’t so much that black folks were voting in the cities as that there was some recognition there of black citizenship. Atlanta, for instance, had black police officers; no guns and white commanders, but you’d never have seen that in Georgia’s rural counties. If you give ’em an inch …

        It’s sort of like how the ACC reacted when Frank McGuire brought in Jews from New York to play basketball at North Carolina. There was a substantial uproar about that; if Jews can play at UNC, can blacks be far behind?

        Sounds silly, I know, but there it is.

  • Frank Forchins

    Daily Reminder:

    Hillary Clinton will not be President.

  • Tom Paine Caucus

    I don’t agree with the details of Lessig’s argument, but I don’t think you’re giving the concept a fair treatment. In 2000, the Supreme Court issued a highly partisan opinion to stop the Florida recount to ensure that Bush would be declared the winner–even if the chances of a Gore victory were unlikely. In doing so, it relied upon an equal protection argument with all of the flaws that you describe. The current court is split. On January 3, Obama can recess-appoint Garland. At that point, a partisan court majority could assert on equal protection, one-person-one-vote grounds that when the popular vote results and electoral college math conflict, the popular vote must prevail; declare Clinton the winner; and issue any necessary orders. Will it do that? Would its decision be effective? Probably not. But there is a judicial realist way to look at this in which Lessig has a point.

    • Jameson Quinn

      Agreed. Although the ruling would not be “just use the popular vote”; it would be “states must allocate electors proportionally, except they’re allowed to ignore third parties when they’re kinda small because mumble mumble”. Which actually makes at least as much constitutional sense as Bush v. Gore, by Lessig’s argument; unlike TPC’s well-intentioned suggestion of “just ignore the EC”.

      • Jameson Quinn

        I am generally sympathetic to “one weird trick” solutions like the platinum coin or this thing. And right now, I’m more enthusiastic about the one where the Democrats take over the senate for a few hours before they let the new Republican class be sworn in, and they confirm Garland. Here’s the WH petition on that.

        I realize that our side isn’t good at the kind of Brooks Brothers rioting it takes to make this stuff stick. And I also realize that the same traits that make us bad at that are often virtues in other senses. But I really wish we could be the ones filled with passionate intensity once in a while.

        • Jameson Quinn

          What the hell? that last thing was supposed to be an independent comment, not a self-reply. The “reply” function is acting very strange for me right now; I think the javascript is broken somehow.

          • efgoldman

            The “reply” function is acting very strange for me right now; I think the javascript is broken somehow.

            Me. to. Also “edit” is busted.

        • pseudalicious

          But I really wish we could be the ones filled with passionate intensity once in a while.

          If it makes you feel better (spoiler alert: it won’t), think back to the right-wing talking point about the Tea Party protests vs. Occupy — we were the dirty hippies leaving garbage everywhere and they were the nice polite grandmas and grandpas cleaning up after themselves and proudly packing heat on camera but who cares about that. Any time we get passionate and block traffic or inconvenience folks, it’s, “Ugh, those dumb dirty hippie kids/thugs” (depending on protester’s melanin count). Then again, you said “Brooks Brothers riot” so maybe my point is moot.

    • liberalrob

      Except you’re asking the Court to “interpret” into existence an alteration of the electoral process specifically laid out in the Constitution, in essence writing their own Amendment. I don’t care what the composition of the Court is; I think they’d be reluctant in the extreme to do that kind of thing, which is supposed to originate in the Congress. This would be stretching the “penumbras and emanations” argument used to infer the right to privacy to an (IMHO) absurd degree.

      • Jameson Quinn

        Read my reply above.

        • Jameson Quinn

          Although the timeline still doesn’t work; the EC votes before Obama gets a chance to make a recess appointment (or to do the #Jan3HighNoon trick).

    • Scott Lemieux

      On January 3, Obama can recess-appoint Garland.

      Is there any reason to think Obama would do this?

      At that point, a partisan court majority could assert on equal protection, one-person-one-vote grounds that when the popular vote results and electoral college math conflict, the popular vote must prevail; declare Clinton the winner; and issue any necessary orders.

      Even assuming arguendo that all five Democrats were willing to be lawless partisans, you’re ignoring a crucial difference between that scenario and Bush v. Gore: Congress, which is the ultimate decision-maker here, would not be on the Court’s side. So the Court is not going to act, and if it did it would lose the resulting power struggle with Congress, which would then with Trump in the White House probably respond by impeaching the five Democrats or court-packing. But, other than that, brilliant plan.

    • MDrew

      Jesus H.

      All this is is an argument that says “Look, the Court can do whatever it wants, so wouldn’t it be great if we could get our hands on the Court even just for a minute or two?!”

      Don’t look now, but a ruling that says that the person elected president must be the one with a plurality or majority of the popular vote whenever the EC doesn’t produce a result consistent with that is just a ruling that says that the person elected president must be the one with a plurality or majority of the popular vote – period.

      As was said above, that’s just a straightforward amendment to the constitution.

      Sure would be nice to have the Supreme Court in complete control of our own partisans, though!

      • Jameson Quinn

        On January 3rd, we could take a SCOTUS majority. Too late to stop Trump, but it’s still worth fighting for. See my message above, and also, call the D senators from Class I and II.

        • MDrew

          Ok (but see below), but I was referring to your argument to that effect. The argument I was responding to was clear. Am I wrong in any part?

          • MDrew

            *wasn’t*

    • Murc

      On January 3, Obama can recess-appoint Garland.

      … we can? Is the Senate finally going into actual-factual recess?

      Because if so then Obama should absolutely do this. Absolutely. It would be gross dereliction not to.

    • Redwood Rhiadra

      On January 3, Obama can recess-appoint Garland.

      FALSE. NLRB v. Hugo Canning established that a recess must be TEN DAYS LONG before the President is permitted to make a recess appointment. The January 3 recess will be only minutes.

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