Acetone wrote:How can something in the constitution be unconstitutional?

All states except Maine and Nebraska currently allocate electors based on the winner-takes-all rule, but according to Mr Lessig that system for allocating electoral votes is not mandated by the Constitution, it is employed at the discretion of state.

In draft legal documents, Jerry Sims, an Atlanta lawyer, explores the argument in more depth, explaining that vast changes have occurred in state populations since the Electoral College system was adopted, exacerbating the problem by making the number of representatives allotted to each state disproportionate.

Over time, populations have concentrated in larger states, he said, meaning people from these states are increasingly under-represented in the Electoral College, making it an increasingly flawed system.

Over time it has become, and will continue to become, more and more common for a president to be elected despite having lost the popular vote, he suggested.

Mr Sims said the current system represents an "unconstitutional violation of the equal protection clause of the 14th Amendment and its bedrock principle of one man one vote," and therefore the election result could in theory be overturned by a court.

willhud9 wrote:Except one man, one vote is not a constitutional principle.

Court cases[edit]
In Colegrove v. Green, 328 U.S. 549 (1946) the United States Supreme Court held in a 4-3 plurality decision that Article I, Section 4 left to the legislature of each state the authority to establish the time, place, and manner of holding elections for representatives.

However, in Baker v. Carr, 369 U.S. 186 (1962) the United States Supreme Court overturned the previous decision in Colegrove holding that malapportionment claims under the Equal Protection Clause of the Fourteenth Amendment were not exempt from judicial review under Article IV, Section 4, as the equal protection issue in this case was separate from any political questions.

The "One Person, One Vote" doctrine which requires electoral districts to be apportioned according to population, thus making each district roughly equal in population, was further cemented in the cases that followed Baker v. Carr, including Gray v. Sanders, 372 U.S. 368 (1963) which concerned state county districts, Reynolds v. Sims, 377 U.S. 533 (1964) which concerned state legislature districts, Wesberry v. Sanders, 376 U.S. 1 (1964) which concerned U.S. Congressional districts and Avery v. Midland County, 390 U.S. 474 (1968) which concerned local government districts, a decision which was upheld in Board of Estimate of City of New York v. Morris, 489 U.S. 688 (1989).[3] Evenwel v. Abbott (2016) said states may use total population in drawing districts.

Since Wesberry v. Sanders (1964)[156] and Reynolds v. Sims (1964),[157] the Supreme Court has interpreted the Equal Protection Clause as requiring the states to apportion their congressional districts and state legislative seats according to "one man, one vote".[158]

Acetone wrote:How can something in the constitution be unconstitutional?

Scot Dutchy wrote:

Mr Trump swept to victory thanks to the centuries-old electoral college system, which distributes electoral votes around states and the candidate who wins in each state gets all of those votes.

Larger states - like Pennsylvania with 20 electoral college votes and Michigan with 16 votes - went to Mr Trump.

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Scot Dutchy wrote:

Almost all states operate a "winner-takes-all" system, which ignores voter margins. So for instance, Ms Clinton got 44 per cent of the vote in Georgia, but because Mr Trump got a larger percentage, none of the state's six representatives in the Electoral College are set to vote for her.

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willhud9 wrote:

Acetone wrote:How can something in the constitution be unconstitutional?

It can't. And I am quite concerned with the education those legal experts received.

The SCOTUS cannot overturn portions of the constitution. That is not in their power. The only way to overturn portions of the constitution is amendments.

willhud9 wrote:Except one man, one vote is not a constitutional principle.

Byron wrote:Yup, unlike the recounts, given that the Constitution's silent on the matter, challenging the allotment of EC votes could have legs.

From an originalist POV, electors should be free to vote however they please, in-line with the intent of the Founders; from an evolving Constitution POV, you can make a strong case that, on equal protection grounds, votes should be divided as equally as possible.

Even if the SCOTUS bought it, however, doubt it'll help Clinton: on public policy grounds, they'd be loathed to overturn an election result; this would be a change for 2020.

Oldskeptic wrote:I don't know, the Supremes can move awful fast if it's real important, just look how fast they moved in 2000. Not saying it could actually happen, but just imagine the impact of the Supreme Court announcing on December 12th, in a 5 to 3 decision, that all states using a winner takes all electors system have just violated the civil rights of 65.5 million voters to have an equal vote to anyone else.

It's kind of simple math. If ~65.5 million people voted for Hillary and ~62.8 million people voted for Trump and Trump won then Trump voters had ~105% of a vote to Clinton voters' ~100%. Or to turn it around 1 vote for Clinton ended up only worth 95.8% of a Trump vote. Or to expand it a bit more every ~958,001 Trump voters are overriding 1,000,000 Clinton voters in a country where one person one vote is indeed a constitutional principal.

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: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.