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.

In 2016, the Nebraska legislature increased the non-presidential independent petition requirement from 4,000 signatures to 10% of the number of registered voters. Except in Ballot Access News, that change got no publicity. Now, however, the Associated Press has published a story about the 2016 action.

Every petition requirement for independent candidates, and new parties, in excess of 5% of the number of registered voters, has always been held unconstitutional. It is somewhat likely that some independent candidate will sue to overturn the Nebraska law. Not only is 10% too high; there is also the point that Nebraska’s new party petition is 4,880 signatures, and it makes no sense to require so many more signatures for an independent candidate than for an entire new party.

On September 8, North Carolina’s Attorney General filed this brief in Crowell v Bipartisan State Board of Elections, m.d., 1:17cv-515. This is the case that challenges the North Carolina policy that will never permit an independent voter to be a member of the state board of elections, or any county board of elections. The case is assigned to Judge William Osteen, a Bush Jr. appointee.

The brief does not discuss the merits of the case. Instead, it reacts to the request by North Carolina legislative leaders that they be allowed to intervene in the case. The Attorney General’s brief says that the Attorney General is capable of defending the state law, and that there is no reason for the legislature to intervene in the case. But, it says that the Attorney General won’t oppose intervention by the legislature. The Attorney General is a Democrat and Republicans have a majority in each house of the legislature.

The Attorney General’s brief is interesting because it sets forth the position of the Governor, who is also a Democrat. The brief says the Governor has never taken any position that independents should be allowed to sit on election boards.