Another last gasp approach to salvaging the election is proposed by Harvard Law Professor Lawrence Lessig on Moyers & Company:
Most people, even Dems, can’t seem to allow themselves to even think about a constitutional challenge to the Electoral College — because they’re convinced our current Electoral College system is embedded in the Constitution. So when someone says, “What about one person, one vote?” they respond, “It’s the Constitution that creates this inequality — just as with the Senate — and the court is not going to overrule the Constitution.”
Yet that response misses a critical point.
Yes, the Constitution creates an inequality because of the way it allocates Electoral College votes. A state like Wyoming, for example, gets three electoral votes with a population of less than 600,000, while California gets 55 electoral votes with a population of more than 37 million. Thus, while California has a population that is 66 times Wyoming, but only gets 18 times the electoral college votes.
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?
Professor Lessig proceeds to assemble a legal argument from various sources and people. I learned a lot: the Constitution’s Articles themselves are not absolute, for example, if one would violate another through an absolute interpretation. It’s an interesting approach, much less like the butchery proposed in earlier posts on this thread; it makes a strong argument that leans heavily on the concept of justice, rather than using technical timing issues. It certainly has an attractive quality.
But in order to be heard someone’s going to have to file for it. I have no idea if Roberts would be sympathetic, or Kennedy for that matter; I figure Thomas and Alito are probably a lost cause when it comes to something like this.
But it’s worth spreading the word. Here’s that link again.
(h/t Sydney Sweitzer)
