Winner-take-all electoral vote makes losers of everyone
It’s the 15th of the month, and that means it’s time for another report from [Lawrence Lessig] on the work we’re doing to fix this democracy. We will hit two important milestones this month. They get the focus of this email.
First: In 10 days, the briefs answering the four motions to dismiss our challenge to winner-take-all in the electoral college will have been filed in each of our four states. Texas, California, and South Carolina have already been filed. On June 25, the brief in Massachusetts will be filed as well.
These four briefs do a fantastic job laying out the essential argument that we’ve been making from the very start of this case: That winner-take-all — which is no part of our actual constitution — is a state created rule for allocating electoral college votes that not only violates the principle of one-person-one-vote, but also fundamentally distorts the process of electing our President. In every election, presidential candidates focus exclusively on the interests of the battleground states. (In 2016, 99% of spending was in those 14 battleground states.) Yet those states do not represent America. There is no good reason — historically or democratically — for allowing that distortion to continue.
Some people say this is just what the Framers gave us. The electoral college, they say, was meant to benefit small states. That may not be equal, but that was their plan.
But the “battleground states” — such as Florida, Pennsylvania, Ohio, Michigan, Wisconsin — are not “small states.” A couple are — New Hampshire, for example. But New Hampshire is on that list not because it’s small but because it is politically divided. Winner-take-all thus doesn’t advance the Framers’ objectives; it doesn’t achieve democracy’s objective. It is a bad idea whose time has gone.
You can read the incredible (and pro bono) work of the many lawyers who have put these arguments together on our web page. The firm of Boies Schiller Flexner has taken the lion’s share of the work, but Alston & Bird has done fantastic work in South Carolina. And we are grateful for the work of volunteers from Munger, Tolles & Olson and other firms as well. We are hoping for a quick decision from the district courts, so we can get to a Court of Appeals as quickly as possible.
Second: We got some really great news from Alaska that will make it possible for us to make an effective argument in our case to challenge SuperPACs.
Some background: If you’ve been following our work carefully, you’ll know that we’re representing citizens in Alaska who are upset that Alaska’s law regulating SuperPACs has not been enforced by Alaska. That’s not surprising, of course, because a federal court in DC — and not the Supreme Court — has held that the First Amendment blocks Alaska or any other government from limiting contributions to independent political action committees. That case was Speech Now v. FEC (2010), and Speech Now gave us the SuperPAC.
In 2012, an Alaska state advisory opinion said exactly that, and the Alaska Public Offices Commission recently rejected our claim by saying that because of Speech Now, it has no power to enforce its anti-SuperPAC law.
The Supreme Court has never reviewed Speech Now. And we don’t believe that the Supreme Court would uphold Speech Now — at least if the right argument against it were made. We know there are four justices for sure who would reverse it — Justices Breyer, Ginsburg, Sotomeyer, and Kagan. But we also believe there is at least one more who could be persuaded that — consistent with his own principles — Congress and the States should have the power to limit contributions to independent political action committees.
That “at least one more” is any of the conservative justices who call himself (and yes, just “himself”) an “originalist.” “Originalists” are committed to interpreting the Constitution as the Framers of the constitution would have interpreted it. (I know; I clerked for Justice Scalia.) We believe that we can show that the Framers of our constitution would never have meant that their First Amendment would block Congress from regulating the kind of “corruption” — as they would have defined the term — that SuperPACs represent. We’ve been fighting for the chance to make this argument to the conservative on the Supreme Court, to get at least one to agree with us and thereby give states like Alaska, as well as the federal government, the power to limit contributions to independent political action committees. After all, the most recent originalist appointed to the Court — Justice Neil Gorsuch, replacing Justice Scalia — was appointed by a President who has explicitly called for an end to SuperPACs.
So then here’s the news: To make our argument, we need to introduce to the Court the history that shows the framers’ understanding of “corruption,” as well as the political science about SuperPACs in American politics today — shows why SuperPACS fits their understanding to a t. That testimony will require experts, and it will require essentially a trial to present the evidence in a persuasive way. We therefore petitioned the appellate Court to allow us to conduct essentially a mini-trial with two experts. The Court has now agreed. It will hear the testimony of one of America’s greatest historians of the framing period — Jack Rakove — as well as the testimony of one the leading political scientists in America studying SuperPACs — Adam Bonica.
This is an extraordinary break. It will be a hard argument to make in any case: So many perceive the conservative justices as committed to the corrupt system we’ve seen evolve; it will take careful argument and careful history to show why that is just not true. We now have that shot in the Alaska Superior Court.
Stay tuned for a campaign to help us build and present this important case. It may be a long shot — but like every shot we’re taking, it is right, and if we win, it will change everything.
Thank you again for all you’ve done. We’ve got a long way to go. But we’re miles ahead of where we were last year.
The most significant flaw in our Presidential elections is not the Electoral College, but the states (all but Nebraska and Maine) that use a winner-take-all allocation of electoral votes. In Florida alone, more than 4.9 million votes - the majority of those cast - were unrepresented in the final tally. Nationally, that number is more than 62 million.
This can be fixed. Contact your state legislators today.
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