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Lawrence Lessig Calls For The Electoral College to Choose Clinton Over Trump (washingtonpost.com)

Posted by EditorDavid on from the elections-vs-electors dept.

Lawrence Lessig's new op-ed in the Washington Post argues against the idea "that the person who lost the popular vote this year must nonetheless become our president." (Paywalled version here, free version here.) Lessig points out that the electoral college results have already been ignored twice in U.S. history -- in 1824 and 1876. The Constitution says nothing about "winner take all." It says nothing to suggest that electors' freedom should be constrained in any way...They were to be citizens exercising judgment, not cogs turning a wheel.
Complaining that the electoral college weights the votes in Wyoming roughly four times as heavily as the votes in Michigan, Lessig argues that the popular vote should be respected, and that the authors of the U.S. Constitution "left the electors free to choose. They should exercise that choice by leaving the election as the people decided it: in Clinton's favor."

Meanwhile, Politico is reporting that six electors, "mostly former Bernie Sanders supporters who hail from Washington state and Colorado," are already urging electors pledged to Clinton and Trump to instead coalesce around "a consensus pick like Mitt Romney or John Kasich." And the ethics lawyers for both President Obama and President Bush both told one liberal site "that if Trump continues to retain ownership over his sprawling business interests by the time the electors meet on December 19, they should reject Trump." Finally, from the original submission:
Even Donald Trump has called the Electoral College a "total sham." Is it time for the Electoral College to reflect the popular vote?

22 of 1,430 comments (clear)

  1. Change the law by Anonymous Coward · · Score: 5, Insightful

    Stop bitching about how unfair the electoral college is. Go through the legal process to change/eliminate it so this it doesn't happen again, if that's what the people want.

    1. Re:Change the law by Anonymous Coward · · Score: 5, Insightful

      I think the point this Harvard Law Professor is making is that this is within the bounds of the law, and even has historical precedent. But maybe you know more than he does.

    2. Re:Change the law by Lisandro · · Score: 5, Insightful

      It is specially ironic considering how dems went after Trump after he insinuated wouldn't accept the election results.

      Don't take me wrong, I'm terrified about the prospect of the orange sexist taking office as much as anyone else, but he won the elections. These talks about having the EC changing their vote, or recounts are delusional.

    3. Re:Change the law by Lisandro · · Score: 5, Insightful

      Well, the rest of the developed world seems to be able to do it just fine.

    4. Re: Change the law by hambone142 · · Score: 5, Insightful

      The irony here is Hillary pursued the "superdelegates" so she could have an Electoral College advantage.

      Now we find Trump came out ahead with the E.C. votes and lost the popular vote.

      The poetic justice is that Hillary was beat at the game she originally pursued (attempting to stack the E.C. in her favor).

      Ya just gotta love it.

    5. Re:Change the law by DeVilla · · Score: 5, Insightful

      Eliminating the electoral college wouldn't not require candidates to run a nation wide election. Quite the opposite. Politicians could focus on California, New York, Chicago and maybe urban areas in Texas. The rest of the nation wouldn't matter.

    6. Re:Change the law by bws111 · · Score: 5, Insightful

      It will never happen because the Constitution specifies that the president is to be elected by the states. The only way to change that is to change the Constitution, which would require 38 states to decide they should have no say on who is President, that whatever a handful of northeastern and west coast cities decide is fine with them. Ain't gonna happen.

    7. Re: Change the law by ArmoredDragon · · Score: 5, Insightful

      The biggest irony in all of this is that Lessig argued that money wins elections and even ran a campaign to try to end that.

      And now, here he stands, trying to change the results of an election to be in favor of the person who massively outspent her opponent, even though she already lost.

      Hath hell frozen over?

    8. Re: Change the law by amiga3D · · Score: 5, Insightful

      Without California Hilliary wouldn't have won the popular vote. She won California by over 2 million votes, a total higher than she got for the US overall. California is so overwhelmingly liberal that I don't think Trump even bothered with it knowing that it was hopeless. This is what the electoral college was designed specifically for, to preserve the power of the smaller states so that they don't become marginalized. Worked exactly as designed.

    9. Re: Change the law by ghoul · · Score: 5, Insightful

      California must be doing something right if the population has grown so much. People actually want to come here. Unlike the Republican South from where people are leaving in droves for Blue states. Election by popular vote would be a good way of giving feedback to idiotic state govts. People could vote with their feet by leaving the idiotically run states . Instead we have an Electoral college. Even if people leave the idiots stay behind and still get a voice in fact the idiots voice gets more valuable

      --
      **Life is too short to be serious**
  2. Sour grapes by A+nonymous+Coward · · Score: 5, Insightful

    Clinton and Trump campaigned in the swing states because that is what the Electoral College encourages. The popular vote "imbalance" is a mirage. If they had been campaigning for the popular vote, if there had been no Electoral College, the campaigns and the results would have been different in ways we can't imagine.

    To change the Electoral College process now, after the popular vote is over, is sour grapes.

    --
    Infuriate left and right
    1. Re:Sour grapes by Shane_Optima · · Score: 5, Insightful

      Except what is being proposed here isn't a change. The electoral college would be operating exactly as it has in the past, as it was designed to be able to, and indeed as it was intended: giving the electors the ability to prevent a moronic populist from ascending to the presidency is arguably precisely the entire point of the electoral college. The fact that Hillary won the popular vote by millions is just a happy coincidence.

      You hear that, all you people pro-electoral college people? The very core of the electoral college absolutely gives them the electors the right (barring state law requirements) and the duty to jump ship based on the needs of the country. Don't like it? Then you should support electoral college reform.

      I personally think there are some fairly compelling arguments against this actually happening, but this needs to be said loudly and clearly for all of you smug pro-EC nutters who don't understand what it is what you're actually arguing for: You don't get to dismissively wave away appeals to the popular vote as irrelevant whilst simultaneously rejecting any possibility that the electors might execute their own judgment. Either you are for some form of electoral college reform, or you are completely fine with the possibility that they may yet choose to elect someone other than Donald J. Trump for President.

    2. Re:Sour grapes by lgw · · Score: 5, Insightful

      Ah, the Democrats, always trying to change the rules in the middle of the game. Didn't work in 2000, won't work now.

      If you really care about the process, not the winner, change the rules at a time when your guy will lose as a result. You'll get far more support then. Or, you know, amend the constitution following the normal process right after an election (like, say, this one), so that it's all settled before the 2020 campaign begins.

      Personally, I think the founders were wise. Balance states' rights against direct democracy, to avoid the historical mistakes going in either extreme have demonstrated (for many centuries in both cases).

      --
      Socialism: a lie told by totalitarians and believed by fools.
  3. Electoral college does reflect the popular vote by SensitiveMale · · Score: 5, Insightful

    The vote of each state.

    There are many reasons why a straight popular vote is bad and the electoral college is better but the best one I can think of is what happened in the recent election. Hillary Clinton won 300 counties while Trump won 5000. If you think that the election of a nation should be swayed by a handful of cities while the rest of the nation is completely ignored, well, you're an idiot.

    1. Re:Electoral college does reflect the popular vote by JoshuaZ · · Score: 5, Insightful

      There are two historical elements for why the electoral college was invented. One, discussed by Hamilton in Federalist 68 was to provide a final stopgap against demagogues like Trump http://avalon.law.yale.edu/18th_century/fed68.asp. The second was to give the slave states more power http://www.vox.com/policy-and-politics/2016/11/12/13598316/donald-trump-electoral-college-slavery-akhil-reed-amar and it should be clear why that shouldn't be ok. As for the argument involving counties: that's just silly. There's no reason that amount of total area won should mean anything at all. Moreover, there's no reason you can reasonably object to cities dominating simply because they happen to be dense areas. Disagreeing with a group doesn't mean you get to use essentially arbitrary criteria to decide you'd like to ignore their wishes.

      There are good arguments against having the electoral college change in this case (especially given that we don't know if Hillary would have won the popular vote if both her campaign and Trump campaign had optimized voter turnout rather than focused on swing states) but trying to make an argument that relies on county number is just awful.

  4. Re:It's past time. by Sartr · · Score: 5, Insightful

    Sure. Nothing except the large majority of food, farms, guns, and factories. You coastals have a monopoly on Hollywood actors and expensive beachfront property. Not much else.

  5. What about the primaries? by Zobeid · · Score: 5, Insightful

    I'm not a fan of the Electoral College, and I'd be pleased to see it go away. However. . .

    The shortcomings of the Electoral College are *trivial* in comparison with the broken and dysfunctional primary system that gave us Clinton and Trump as our major-party candidates. It's utter madness. That's where we should focus our reform efforts.

  6. Consistency Alert by uncqual · · Score: 5, Insightful

    On the one hand, Lessig relies (correctly) on the fact that the Constitution places no restrictions on how electors vote and that it was expected that they would be citizens exercising judgement.

    On the other hand, he disagrees with a very fundamental feature of the Constitution -- that states, by the fact they are states, have power beyond just the mass of their population. This is directly evidenced in the Constitution as it defines how the Electoral College and Senate work. The Founders felt so strongly that each state have an equal vote in the Senate independent of the population of the state that the ONLY thing that can't be amended in the Constitution with approval of ¾ of the states (NO state can lose equal suffrage in the Senate without approval of that state).

    It seems quite odd to rely on the Constitution for one argument and then completely dismiss one of its most fundamental concepts that protected the less populous states from being run roughshod over at the Federal level by the more populous states. One might go so far as to label such a viewpoint as hypocritical.

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    Why is there an "insightful" mod and why isn't it "-1"? If I wanted insight, I wouldn't be reading /.
  7. Re:It's past time. by Anonymous Coward · · Score: 5, Insightful

    And that attitude is exactly why Hillary lost. The party that preaches inclusiveness and claims to look out for the common folk, dismissed the common folk and took them for granted. The ivory tower progressive elites forgot what the Democratic party was actually built on. The further they go left and progressive, the more votes they'll lose.

  8. So let me get this straight by nehumanuscrede · · Score: 5, Insightful

    These people want to scrap the system that has been in place since the whole thing began because things didn't turn out in their favor ?

    It seems that the current generation just can't handle defeat ( they've been insulated against it their entire lives ) so when things don't go
    their way, the best course of action is to loudly demand that the rules be changed ? If that doesn't work, organize protests and maybe
    cry on camera a bit ? Perhaps hire a celebrity to be " The voice for the unheard " or some other silly attention seeking behavior.

    Welcome to reality kids. Where life is cold, uncaring, unfair and, occasionally, absolutely horrific.
    By the time you become an adult, we've flat run out of consolation and / or participation prizes.
    Sorry to be the bearer of bad news.

    So strap yourselves in, because it's going to be a rough ride.

    For anyone who argues Trump supporters would be doing the same thing were the situation reversed, I call out your bullshit and will say
    it's pure speculation on your part. Right now the only folks who are actively participating in the riots and general stupidity are those who
    claim to be the " more educated, intelligent and / or informed " than those " Deplorable " Trump Supporters ( Hillary's description of them I believe ).

    I don't recall any of this sort of bullshit when Obama got elected.
    ( Or any President in recent history for that matter. Republican or Democrat )

    So, other than dealing with the most coddled, spoiled, insulated and catered-to generation of all time, what do you believe has changed to
    cause such behavior issues from the very folks who own words claim intellectual superiority over everyone else, while their actions say otherwise ?

  9. Re:It's past time. by Koby77 · · Score: 5, Insightful

    Cook up all the justifications you want about why Trump 'won' the election and why he should be president.

    How about -- he won the electoral contest? You know, the one set of rules that actually counts? The one system that was perfectly okay before the election, until now that some of the losers are sore and are concocting all the justifications for a change in the outcome after-the-fact?

    Democracy is a system whereby elected representatives are chosen by winning the popular vote not a gerrymandered system where you elect a group of functionaries who then vote for the runner up.

    Actually, if you live in the United States, then you don't live in a pure democracy. You are in a democratically elected representative republic. This means, by design, that sometimes the majority does not get its way.

  10. Simple way to test if you truly believe in this by Solandri · · Score: 5, Insightful

    If Clinton had won the Electoral College but Trump had won the popular vote, would you have taken the time to write up an op-ed outlining the flaws of the Electoral College, would you have protested in the streets, would you be demanding Trump be made President? If not, then you are simply being partisan, and your support for this is out of self-interest rather than truly wishing to improve the system.

    Someone truly wishing to reform the Electoral College would be for such reform regardless of who won. If you truly believe a change is for the better, you support it even when it works against your own self interests. I think Merkley made a mistake dismantling one of the checks and balances the Founding Fathers put into the system to prevent a simple majority from having too much power, but I respect him for not changing his position even though he now finds himself on the disadvantaged side of his rule change.

    (And if you're one of the people who believe Merkley's rule change was necessary because the Republicans were stonewalling in the Senate, the Washington Post keeps a database of how often each Senator votes with his/her party. Here are the stats for the 108th, 109th, 110th, 111th, 112th, and 113th Senates, spanning 2002-2015 with Senate control by both parties, covering both a Republican President and Democrat President. Click on the Party column to sort it by Senators most likely to vote for their party. You'll see it's actually the Democrats who most frequently vote as a block, and the Republicans who are more willing to cross the party line. The meme that Republicans refused to compromise was fake news spread by the mainstream media without any statistical evidence to back it up.)