by Jason Harrow, attorney and Equal Votes campaign advisor

In my prior post, I explained why it’s helpful that, after we file our legal complaint, a court has to take up our case and tell us whether we win or lose. But that raises the question of whether a court can even consider the case and change the way states allocate their electors. Isn’t that up to the states themselves, under the Constitution?

Not exclusively: courts are allowed to weigh-in on whether states are violating principles of equality in the area of election law. And that’s why we have an opportunity to win in court.

To be specific, states don’t have unlimited latitude to allocate electors in any way they want, even though the Constitution says that electors are chosen “in such Manner as the Legislature thereof may direct.” The reason is that this line granting states wide latitude when it comes to allocating electors is not the only relevant part of the Constitution. Instead, when it comes to allocating electors and other aspects of election law, states are constrained by other parts of the Constitution. And a critical constitutional Amendment (the Fourteenth) says that states must grant everyone the equal protection of the laws.

Let’s take an easy example. Suppose the state of California passed a law tomorrow saying that all 55 of its electors to the Electoral College would be allocated to the popular vote winner of the state, and the electors must all be Jewish, or African-American, or male. That kind of discrimination in choosing electors would obviously violate the Equal Protection Clause, even though the Constitution appears to permit the state to choose electors in “any manner” it chooses. But “any manner” doesn’t really mean “any manner,” because California cannot run afoul of the Equal Protection Clause in the way it allocates its electors. So there actually are limits — and it’s those limits we want to ask the court to enforce.

In fact, the Supreme Court has repeatedly said that the Equal Protection Clause applies to the way votes are counted, districts apportioned, and elected officials selected. In Bush v. Gore, for instance, the Supreme Court stopped the Florida recount in the 2000 election because the court found that Florida was not treating individual ballots equally in the recount. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another,” the Court wrote. That is because there must be “equal weight accorded to each vote” and there is “equal dignity owed to each voter.” That’s exactly what we are asking the court to recognize here.

Indeed, courts have particular expertise at deciding whether two people, or two groups, have been treated equally under the Equal Protection Clause. Many of the most important decisions in the last century — from Brown v. Board of Education, which ruled segregation in schools to be unconstitutional, to Obergefell v. Hodges, which struck down laws banning same-sex marriage, to, yes Bush v. Gore — have been rulings where courts found the Equal Protection Clause was violated.

The issue of unfairness in the Electoral College is thus well suited to be brought as a court case, because it fits squarely in this tradition of judging equality. The votes of those people who do not vote for the person that receives a majority of votes in a state are essentially thrown away, while the votes of those who vote for the state winner — even if by a single vote! — are multiplied exponentially. Add this up throughout the country, and you get the bizarre, anti-democratic, un-equal system we have now. Even if our politicians won’t do anything about it, we hope we can get a court to. The inequality is right there, for any court to see. We just have to ask.




Equal Citizens-a nonprofit organization founded by @Lessig-is dedicated to reforms that will achieve citizen equality. #fixdemocracyfirst