Lawrence Lessig Plans Lawsuit Against Electoral College, but Courts Have Repeatedly Rejected Such Lawsuits in the Past

Law Professor Lawrence Lessig is raising money for a proposed lawsuit against the electoral college system for electing the president. He writes “In a democracy, all votes should count equally. In our democracy, when voting for the president, they do not.” Here is an article he wrote for Daily Beast. His goal is to raise $250,000.

Federal and state courts have faced somewhat similar lawsuits in the past, and they have always lost, even in the U.S. Supreme Court. In 1966, the state of Delaware filed a request directly with the U.S. Supreme Court to overturn the system, but the Court refused to hear it. Delaware v New York, 385 U.S. 895.

In 1967, some Mississippi voters sued to overturn Mississippi’s practice of choosing all presidential electors at-large, but they lost in a 3-judge U.S. District Court. Penton v Humphrey, 264 F.Supp.250.

In 1968, some Virginia voters challenged Virginia’s law that provides all the state’s electors should be elected at-large. Williams v Virginia State Board of Elections, 288 F.Supp.622 (1968). The three-judge court upheld the system. The U.S. Supreme Court then summarily affirmed that decision, 393 U.S. 320 (1969).

In 1978, some Alabama voters filed a similar challenge, but they lost in U.S. District Court and the Fifth Circuit, and the U.S. Supreme Court refused to hear the case. Hitson v Baggett, 446 F.Supp. 674; 580 F.2d 1051; 439 U.S. 1129.

In 1980, some Louisiana voters filed a similar challenge in state court, but lost. Lowe v Treen, La.App., 393 So. 2d 459 (1980).

The problem faced by such lawsuits is Article II, section one, which says, “Each state shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” That provision is very specific, and thus it overrides the general language in the Fourteenth Amendment for equal protection.


Lawrence Lessig Plans Lawsuit Against Electoral College, but Courts Have Repeatedly Rejected Such Lawsuits in the Past — 8 Comments

  1. Lessig will obviously claim that the 14th Amdt EP Cl amended Everything before the 14th Amdt — including Art. II, Sec 1.

    Very good luck in finding even 1 word in the 39th Cong, 1 Sess about the question.



    40,992,309 30.0 306 TOTAL 30 STATES + ME CD2
    — — —
    29,395,458 21.5 233 AK TO KY 26 ST
    6,798,147 5.0 ‘+ 43 NC+OH+MO
    36,193,605 26.5 276 ECV 29 ST
    — — —
    29,395,458 21.5 233 AK TO KY 26 ST
    6,212,397 4.5 ‘+ 39 FL+MO
    35,607,855 26.0 272 ECV 28 ST
    — — —
    136,787,187 100.0 538 ECV TOTAL PREZ VOTES (50 ST+DC)


    Fusion State votes counted for Trump.
    Trump won all CD in NE – not counted separately.

    In 2020 Elephants will go for the 272 or 276 ECV combos — perhaps with even more gerrymander CD votes.

    Think 1860.


  3. How about that mutual secession — leftwing and rightwing States ???

    The 1787 Fed Convention ignored/overthrew the 1777 Arts of Confed.

    Why not a repeat ???

  4. Demo Rep’s first post seems right on point to me. Section 2 of the 14th Amendment clearly addresses operation of the Electoral College in so many words — and thus limits the “plenary-ness” of Article II, Section 1’s EC language (as already modified by the 12th Amendment):

    “Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the *CHOICE OF ELECTORS FOR PRESIDENT AND VICE PRESIDENT OF THE UNITED STATES*, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”

    (The 14th’s language about limiting the vote to male inhabitants 21 or over has of course itself been superseded by later amendments, so now women and those 18-21 can vote too.)

    Combine that with the Supreme Court caselaw saying that voting rights are denied by dilution, and you come to the conclusion that all states should be allocating at least their “Representative” electoral votes (if not their “Senatorial” votes too) proportionally. The only possible out I see for states might be to have the legislators try to escape from relying on popular vote entirely as a method of allocating electoral votes . . . and I hope none of them are going to even imagine they could get away with THAT. (And even that still might not work if the courts decided that denying to ALL voters the right to vote for any of these offices must encompass denying the vote to SOME of them — though IMO the history of the 14th would lean against that argument.)

  5. TWO main speeches about proposed 14th Amdt in May 1866

    — after multiple failures about the various parts in it from Dec 1865-May 1866.

    SCOTUS morons do not know the difference between voting and election results — in 14th and 15th Amdts.

    14 Amdt, Sec. 2 = universal ADULT MALE CITIZEN right to vote — north, south, east, west –

    — In 1866 many States had all sorts of constitutional/statutory limits on such ADULT MALE CITIZENS — own property, literacy tests, durational residency, etc, etc.

    The rotted ex-slave States [all evil oligarchies] had very limited numbers of even white voters — ie esp. white rich plantation owners.

    What if a State regime did NOT have a public election by its ADULT MALE CITIZENS for 12th Amdt Prez Electors ???

    Note the “Executive and Judicial officers of a State” — obviously applies only IF there is a public election of such State officers.

    Lots of appointed Executive and Judicial officers in each State.

    The MESS is due to a total research failure to have the definition of Elector-Voter in ALL States in May-June 1866 in some congressional report.

    In 1866 the Congress was dealing with the death and destruction in the Civil War (esp Union men maimed, multi-multi thousands of widows and orphans), the giant increase in the national debt, the French machinations in Mexico, etc. along with the infamous ***Black Codes*** in the ex-slave States trying to keep ex-slaves in a de facto slavery condition, protecting even whites in the ex-slave States who had maintained loyalty to the Union (at TOTAL risk to their lives), and the major chaos from a wartime to a peacetime economy (aka retrenchment).

    Reconstruction until 1877.
    Const Amdt–

    Uniform definition of Elector-Voter in ALL of the USA.

    PR and AppV

  6. The lawsuit, then, should attack how representatives are apportioned. If there must be equal protection, and the electoral college is tied to the number of representatives, then the number of representatives per state should be proportional to the number of people in each said state, not fixed at 435. That way a smaller state wouldn’t get more electoral votes per person than a large state.

  7. SCOTUS (and many State courts) do NOT like having stuff (esp – the Constitution’s language) being amended or repealed by *implication*.

    IE – to avoid problems const amdts esp. have to amend/repeal such and such EXACT words.

    See specific repeal of the infamous booze prohibition 18th Amdt by 21 Amdt, Sec. 1 — after lots of killings and massive corruption.

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