Cause Project
by Equal Citizens Foundation
Project Details
Fixing our presidential election system
America has evolved a system for electing its president that is fundamentally unrepresentative. That flaw is only partly the product of the Constitution. Much more significant — and much more remediable — are the choices that states have made for allocating the electors the Constitution secures to them. We believe those choices can be significantly affected through litigation and state legislation.
At its core, the problem with the current system is “winner-take-all” [WTA] — the choice by 48 states (and the District of Columbia) to allocate their electors exclusively to the winner of the popular vote in that state. This system has three profoundly unrepresentative consequences:
First, WTA skews the political attention of the President and presidential campaigns. WTA concentrates presidential campaigns in “battleground states.” In 2016, for example, 99% of campaign spending was in just 14 states. Those states are not representative of America generally. They are older; they are whiter; their industry is skewed to industry of the past. Yet the fight for the presidency is the fight to persuade this unrepresentative minority. Presidents seeking reelection are keen to keep this unrepresentative minority happy. Federal spending in battleground states is thus higher; regulations are more carefully tuned.
Second, WTA increases the probability of minority-elected presidents. We can demonstrate that the probability of the Electoral College selecting a candidate who has lost the popular vote is at least 30% in close elections. That number will increase going forward.
Third, WTA renders the presidential selection system particularly vulnerable to foreign interference. Among the alternatives, WTA is the most easily hacked, as it minimizes the number of votes that must be flipped in order to change the results in an election.
The simplest remedy to this systematic distortion is also the least likely — a constitutional amendment to eliminate the Electoral College. A more likely alternative, which we support, is the National Popular Vote Interstate Compact [NPVIC]. Through that compact, when states representing at least a majority of electors have joined, the participating states pledge their electors to the winner of the national popular vote. So far, twelve states (representing 172 Electoral College votes) have committed to the NPVIC. But the fear of many is that no significant “red” or “purple” state will join the compact, making it impossible to reach 270 electoral votes.
We believe we can help create the political conditions that would encourage the adoption of NPVIC. Or alternatively, through our litigation, we could at a minimum change the dynamic of presidential elections, and increase their representativeness significantly.
To those ends, ECF aims to fix the presidential election system through two litigation projects: (a) litigation challenging winner-take-all in the Electoral College; (b) litigation resolving the constitutional freedom of electors.
The Equal Votes project: a litigation challenging winner-take-all in the Electoral College
On February 21, working with the law firm of Boies Schiller Flexner, plus a number of other coordinating firms, we filed suit in four states — California, Massachusetts, South Carolina, and Texas — raising a constitutional challenge to WTA. In two states — Texas and South Carolina — we raised a Voting Rights Act claim as well.
The essence of the constitutional claim rests upon the Supreme Court’s “one person, one vote” jurisprudence. The Court has repeatedly held that the presidential selection system is subject to the constraints of one person, one vote — most recently, in Bush v. Gore (2000). As the Court explained when reviewing the equivalent of a state-level electoral college, there is a constitutional problem with a system that rendered votes as “being worth nothing and being counted only for the purpose of being discarded.” Gray v. Sanders, 372 U.S. 368, 381 n.12 (1963). That is precisely the dynamic of the WTA system that selects our President. We believe, given the standard of review established in Bush v. Gore (2000), the Court should invalidate WTA and require proportional allocation of electors.
Donation Deadline
Deadline Not Specified
Project Website
https://equalvotes.us/ Project Location
1032 15Th St. N.w., Suite 239, Washington,
District of Columbia 20005
United States.