This is the 2016 Election challenge I want to bring: Take it to the Supreme Court, the Electoral College is unconstitutional.
Stay with me now, don’t shine me on without a listen.
Credentials: I am a lawyer, but a contract lawyer. I don’t claim to know constitutional law. But I know just enough, and I’ve litigated enough contract and statute interpretation cases, to make the outline of (IMHO) a meritorious argument.
The Electoral College Violates the Equal Protection Clause of the 14th Amendment
I live in California. My vote for president is worth maybe 1/3 the vote of a resident of a small state. And as the small states tend to be rural and Republican, this means that, twice in my lifetime and possibly for the foreseeable future, the rural Republican states will elect the president, despite the majority voting for a Democrat.
If a state were to pass a law that white people get three more votes than people of color, I trust we’d have no problem agreeing that this violates the principle of equal protection, is unconstitutional. If a state passed a law that voters in rural counties get three more votes than people living in cities, ditto, right?
If a Republican congress passed a law that white people get more votes, or rural people get more votes, the same unfair result.
The wording of the 14th Amendment makes the equal protection clause apply only to laws passed by states. But the 1954 case of Bolling v. Sharpe held that the equal protection clause of the 14th Amendment can be applied to federal law, via the due process clause of the Fifth Amendment.
The Constitution is a law. If Michigan cannot pass a discriminatory voting rights law, and the US Congress cannot pass a discriminatory voting rights law, we should apply the same principles to the Constitution itself.
How can the Constitution be Unconstitutional?
Now here I do claim some expertise, as a humble contracts lawyer. Though I mostly write contracts in my job, I’ve litigated enough contract interpretation cases, and one statutory interpretation case, to feel very comfortable making this argument.
Laws, like contracts, do not come to us from Mt. Sinai. They are written by people, and people make mistakes (or fail to foresee everything that their laws and their contracts intended to address). When those mistakes are apparent, courts have the power to rewrite the instrument (the term of art is “reform”) to fix the mistake; when the contract or statute is ambiguous about a situation it intended to address, the courts must interpret the imperfect law or contract to make it right.
One of classic instances in which a contract, or a law, needs to be reformed or interpreted is when one part of the contract, or law, conflicts with another part. If the two parts cannot be reconciled, then one of the two warring parts must be fixed.
And, one way in which such conflicts frequently find their way into a contract, or law, is when the thing was subsequently amended.
Voila, the Electoral College of the original Constitution is at war with the Equal Protection clause of the 14th Amendment.
The Principle that Courts use to Reform or Interpret
The principle courts use to reform or interpret statutes—laws—is the same as they use to interpret contracts: the intent of the drafters.
Where the conflict arises between the original law/contract and an amendment, the intent that must be honored is the one embodied in the amendment. That is what the drafters had in mind when they decided the original needed to be improved on. That is the correction they decided to make after seeing how the original version worked out after it had been in use for some time.
What we found out as a nation, is that the compromises made to get the southern, rural, slave states to ratify the original Constitution did not, could not, stand. So we fought a war, and the slave states lost, and before they could rejoin the Union, Congress and the northern states passed the 14th Amendment. Wars, like elections, have consequences.
So Equal Protection represents the more evolved thinking of our Constitution drafters, and of us as a nation.
In a similar vein, the amendments that gave women the right to vote, and provided for popular election of senators, demonstrates that the more evolved thinking, intent, favors equal voting rights, and the principle that leaders should be elected by the people, democratically. You know, to go back to the Declaration of Independence, a government derives its just powers from the “consent of the governed.”
Finally—and here, folks with more expertise than I can hopefully weigh in--wasn’t the intent behind the Electoral College that the people would vote for the electors, smart, thoughtful people who among them would pick the best president? That is not how the thing is done, in real life. In fact, some states forbid the electors to exercise their judgment in casting their votes. The intent behind the Electoral College is obviously not being honored in practice. So, let’s scrap the unworkable, and unfair, and 14th-Amendment-violating, travesty.
Isn’t this Calvinball, to ask the Supreme Court to Change the Rules after the Election?
Well firstly, if that really bothers the Court, they can rule the Electoral College null and void for future presidential elections. Achieving that alone would be a very good thing. We all know that an unfair structure that gives Republicans the power to make the laws, is not going to be voluntarily undone by those same Republicans who now have the power to make the laws.
And I see no reason that the Court could not fairly award this election to Hillary Clinton. A 2% winning margin is not likely to have come out differently had the candidates campaigned under democratic rules.
Furthermore: let’s hold another election, if that is the only thing sticking in the Court’s craw. Donald defensively tweeted that, had the Electoral College not been the rule, he would have campaigned differently, and would have won more bigly and easily. So let’s put that to the test. So long as the contesting party is willing to pay for it (Jill Stein has shown us how easy it would be to raise the money), let’s hold another national election. We could do it, and have a result, before January 20. (Nor would it be the end of the world if the January date got extended. An undemocratically elected Donald Trump, that very well could be the end of the world.)
Finally, you have to bring the challenge now, when there’s a live controversy, a candidate actually denied office because of the Electoral College. You can’t litigate over a hypothetical, with no actually injured plaintiff. You have to bring the challenge at a time when the Electoral College operated to deny the popularly elected candidate, you can’t litigate it as a hypothetical.
Taxation without Representation
You don’t need another article detailing all the ways in which the Electoral College is a travesty. But I can’t resist adding one point I’ve not seen widely made: This is literally taxation without [equal] representation.
The taxation without representation is especially galling when one remembers that we disenfranchised blue states pay more in taxes than we get back, where the unfairly over-empowered red states take, take, take.
Didn’t our Founding Fathers fight a war over that? Didn’t they have a tea party in the Boston Harbor over that? Surely, our Tea Party brethren can understand the justness of that cause.