Regarding a lawsuit based on the injustice of Winner Take All rules in most States for the Presidential election, a reader writes:
I’m thinking to make the argument, a couple things have to happen. (1) Stop the electors from meeting on Dec 19. That date is not mandated, it could be changed. It just has to happen before the inauguration. Get an injunction till the investigation(s) are complete. (2) The Jan 3 mad dash to get Garland seated. You’ve read that one, right? Jan 3 all the Senators who won election have to go get sworn in. At that moment, there would be 30 R and 34 D Senators, plus Biden. Biden calls the Senate back into session, the 34 Dems vote Yea on Garland, Biden puts it back in recess. That would take chutzpah and coordination (the Dems are not good at either). Plus the red state Dems (like my own Sen Tester) who are up for election in 2018 have to really do the right thing. So yeah. No chance.
Re (2), I mentioned it earlier on this thread here. I’m not quite sure what item #2 has to do with making the WTA argument, though. I suspect all SCOTUS has to do is declare WTA is not Constitutional and then the calculations have to be redone, on the basis of what’s considered to be the cutoff – if any. An addendum to Professor Lessig’s article points out that without a cutoff, the risk of throwing the election to the House of Representatives increases, at least in the current example, and that would be equivalent to depriving the citizenry of the right to select their President – a perhaps perilous assertion, since the voters had their chance:
It would seem that the most reasonable practical answer would be a proportional allocation of electors with a cutoff at a de minimis percentage of the total vote. The percentage should represent a reasonable balancing of the right of every voter to participate in the election in a meaningful way and the risk of taking the election entirely away from the voters by sending it to the House of Representatives. A reasonable cutoff would probably be in the range of 10 to 15 percent of the total vote; but any cutoff percentage should be based on a detailed probability analysis which, for obvious reasons, has yet to be conducted.
I had to look up de minimis:
… is a Latin expression meaning about minimal things, normally in the locutions de minimis non curat praetor (“The praetor does not concern himself with trifles”) or de minimis non curat lex (“The law does not concern itself with trifles”) a legal doctrine by which a court refuses to consider trifling matters.
In context? Maybe he wants to show he knows Latin. Since he then defines what the percentage should be, it’s hardly trifling. No doubt I am not subtle enough to understand. But it does seem to me that picking the proper percentage will become a political football, or perhaps gold mine, although I have to think most of Congress will not possess the sort of mind that could comprehend picking a proper number to advantage their side – but the GOP is good at following orders blindly, so just one smart person is enough.
