CT Blue

Alan Dershowitz is apparently not alone.

Back in May I wrote a post about Larry Lessig, Harvard Law Professor who brought a case to the Supreme Court claiming that presidential electors should be free to vote for the person of their choice, in spite of state laws requring them to vote for the candidate to which they were pledged. His stated aim was to “make the Electoral College so wacky and unpredictable that the entire country turns against it, then adopts a constitutional amendment creating a nationwide vote for president”.

In my post, I proved beyond doubt that a favorable Supreme Court ruling would not result in such an amendment. But that case had one merit. A favorable ruling would have done little harm, because one must assume that the campaigns make sure that the electors they choose to put on the ballot will, by and large, remain faithful to the candidate to whom they are pledged.

The Supreme Court ruled against him.

Now Lessig is at it again, along with some other lawyers, including David Boise (who helped George W steal the 2000 election). This time they are claiming that winner take all state elections, in which the candidate with the most votes gets all the electors from that state, are unconstitutional.

The case is brought by a pair of California Republicans and a pair of non-profit organizations and alleges that the “winner take all” system of awarding presidential electors that prevails in every state except Maine and Nebraska amounts to an unconstitutional dilution of their right to vote.

They are claiming that the electors should be distributed to reflect the vote in each state.

I’m sure Lessig and his brethren would argue that the end result of a favorable ruling would bring us a near equivalent to a popular vote constitutional amendment. But this requires us to adopt a very Pollyanish view of the current Supreme Court, for it presumes that the court would issue a decision that would not be infected with partisanship, bad faith, and intellectual dishonesty of the first order. Given that the current Supreme Court is partisan, operates in bad faith, and is as intellectually dishonest as a court can be this is a leap of faith that no Olympian could accomplish, yet Lessig and his compatriots appear to have jumped into the abyss.

There are, roughly speaking, two ways in which the court could render a favorable opinion in this case.

The first way would strike down winner take all systems as unconstitutional and require that electors be apportioned strictly on the basis of the percentage of the vote that each candidate got in the state in question. If a state had 10 electors, and the vote was split 50-50, each would get 5 electors. This would, if applied nationwide, likely guarantee that the popular vote winner would win the presidency, though I suspect that the states having few electors, such as Wyoming, would cause the final electoral college vote to skew red-ward. Proving that speculation would require more math than I’m willing to do, but even if I’m right, the popular vote winner would still likely come out on top.

Because in the current day and age the popular vote winner is overwhelmingly likely to be a Democrat, the present Supreme Court would never choose this option.

The court would take the second route. It would leave it entirely up to the states to determine how to apportion the electors, basically greenlighting an apportionment by Congressional district. This would mean that a heavily gerrymandered state such as Pennsylvania, which gave Biden a majority of its votes, would have given the majority of its votes to the Republican candidate whose name shall not be needlessly mentioned in this blog. There is literally no state in the union that is as heavily gerrymandered in favor of the Democrats as are 10 to 20 states in favor of the Republicans. Had such a system been in place in 2020 the crowds of folks currently being arrested for sedition would have been goose stepping at the genius’s inaugural parade on the 20th of January last. The fact is that such a system would be less likely to favor the popular vote winner than the current system.

Anyone paying attention to this Supreme Court would have to know that this is how they would rule. This is the court, after all, that blessed partisan gerrymandering, a step it would never have taken had it been Democrats doing the gerrymandering. It is also the court that is looking the other way while the states of the South attempt to re-institute Jim Crow.

So, are Lessig and his fellow lawyers just stupid, or are they really just trying to hand the Republic over to the Republicans?

I suspect the court will either refuse to hear this case, or rule against the Lessig team, but we should all fear the possibility that it will take this opportunity to game the system in favor of the Republicans.