The Equal Protection argument against “winner take all” in the Electoral College

In 2000, Republican lawyers, desperately seeking a way to stop the recount in Florida, crafted a brilliant Equal Protection argument against the method by which the Florida courts were recounting votes. Before that election, no sane student of the Constitution would have thought that there was such a claim. When the claim was actually made, every sane lawyer (on Gore’s side at least) thought it was a sure loser. But by a vote of 7 to 2, the Supreme Court recognized the claim, and held that the Equal Protection Clause regulated how Florida could recount its votes. That conclusion led 5 justices to conclude the recount couldn’t continue. George Bush became president.

I’ve been struck in this election cycle by just how timid Democrats have been about thinking in the same way. I’m not (yet) saying they necessarily should. But it is striking to see how committed they are to allowing this train wreck to occur. And more surprisingly, how little careful attention has been given (at the top at least) to just how vulnerable—given Bush v. Gore—the current (system for counting votes in the) electoral college is.

Most people, even Dems, can’t seem to allow themselves to even think about a constitutional challenge to the Electoral College?—?because they’re convinced our current Electoral College system is embedded in the Constitution. So when someone says, “what about one person, one vote,” they respond, “it’s the Constitution that creates this inequality—just as with the Senate—and the Court is not going to overrule the Constitution.”