The U.S. electoral college system took a lot of heat following the 2016 presidential election, with detractors labeling the system unfair. Indeed, were it not for the winner-take-all setup, a candidate receiving fewer votes could not win the presidency.
Now several prominent attorneys and professors have joined to challenge the electoral college system via four lawsuits, claiming it violates the Constitution.
The Constitution provides that “electors” choose the president and vice president, while states determine how electors are selected, the suits explain. Forty-eight states and Washington, D.C., have winner-take-all systems for choosing electors in which the political party of the leading candidate selects every elector. The system magnifies votes by those who chose the winner and discards the votes of others.
In Texas, for example, Donald Trump received 52.2 percent of the vote in 2016, yet he received every single electoral vote in the state, according to the suit filed there. Hillary Clinton received 43.2 percent of the Texas vote, but zero electoral votes. The suits are available here.
This arrangement is what allows a presidential candidate to lose the popular vote but win the election, which has happened a total of five times throughout U.S. history, most recently with Presidents George W. Bush and Donald Trump.
The suits claim the system denies citizens the right to an equal vote in presidential elections in violation of the right to political expression and association under the First Amendment and the principle of one person, one vote under the 14th Amendment. The suits also say the system places minority voters at a disadvantage in violation of the Voting Rights Act.
Heading up the challenge is David Boies of Boies Schiller Flexner and the League of United Latin American Citizens, with funding crowdsourced by Harvard law professor Lawrence Lessig.
“Winner-take-all is not part of the Constitution,” Lessig writes in a post at Medium.com.
“Winner-take-all meant that presidential campaigns were focused on a dozen states only; winner-take-all meant that the chance of a minority-elected president was high; and winner-take-all made America vulnerable to the games evil foreign governments might play, to hack our democracy and defeat majority will,” Lessig writes.