by Jason Harrow, attorney and Equal Votes campaign advisor
Equal Votes is the first public campaign that has attempted to change the way the electoral college functions through multiple coordinated lawsuits. The stakes are huge: two out of the last three Presidents received fewer overall votes than their opponents, but Presidents Bush and Trump nonetheless became president because of the unfair and undemocratic way that states currently allocate their electors. If we want to stop this unfair result from happening again, we have to somehow convince states to allocate their electors in a manner that corresponds to the actual popular vote. In this post and a subsequent post, I want to explain why attempting to make this necessary change via the court system — rather than by asking Congress or state legislatures to change existing law, or by advocating for a constitutional amendment — is a good idea, now more than ever.
A primary advantage of filing lawsuits in federal court is that judges have to give us a reasoned response to our arguments. There are wonderful organizations that are attempting to get state legislatures to pass laws that will make a popular vote more likely, but no state legislature has to listen to these advocates. In fact, no matter how many citizens or advocates want to move to a system that more accurately reflects the will of the people, no state legislature has to vote on any bill that will change the status quo. That’s just the way legislatures work: they choose what issues they want to address.
The same is true of a constitutional amendment or a Congressional law. As many people know, inaction is the default mode in our polarized system. Every constituent in every state could write to their senators asking them to take this issue up, but our Senators are still allowed to say nothing and do nothing. Don’t get me wrong: you should write to your elected officials about this critical issue and advocate for legislative change. But don’t expect to get a reasoned answer about what their position is, and don’t expect an immediate vote in the legislature on a prospective constitutional amendment. Congress doesn’t have to act, and it likely won’t.
But courts work differently. Regardless of whether you are rich or poor, powerful or helpless, if you file a lawsuit, the court must consider it. To be sure, sometimes those being sued will ask a court to quickly dismiss a lawsuit, and that may happen here. But even if that happens, a court will us a chance to respond and make our reasoned argument, and then the court will have to give us an answer about why the case should be dismissed — or, alternatively, why the case should move forward with additional arguments and evidence.
For an idea of how this feature of courts can work to our advantage, consider the legal fights over same-sex marriage or affirmative action. Many state legislatures and Congress have been reluctant to introduce and vote on bills that touch these controversial issues. But, when faced with lawsuits, courts must issue decisions regardless of whether the decision is popular or controversial. Thus, when proper plaintiffs filed lawsuits claiming that denying same-sex couples a right to marry was unconstitutional, or alleging that implementing affirmative action systems in higher education violated equal protection of the laws, courts had to answer these questions.
This means that the federal judiciary is a perfect place for us to file a complaint explaining why the current system is unfair, undemocratic — and, most importantly, unconstitutional. Sometime within a year or two after we file the case, we can be sure we will get a federal judge to hear the case and give us an indication of whether our claims have any merit. And at the end of the process, we will either have won or lost. There’s no such thing as a “not now” in federal court.